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Research Articles

Our research publications are a vital part of the Center’s mission to conduct objective, timely, and non-partisan research into agricultural and food law issues and to provide that scholarship to the agricultural and food law communities. Information provided in these articles and presentations is not intended to be taken as legal advice nor as a substitute for qualified legal counsel. Note: All articles and presentations are published in ADA-compliant PDF format and should be viewed in the latest Adobe Acrobat Reader to enjoy the advanced search and accessibility features. Click here for free download.

Differential Tax Assessment of Agricultural Lands

Evin Bachelor, Law Fellow- Agricultural and Resource Law Program; Ohio State University Extension
Peggy Kirk Hall, Associate Professor- Agricultural and Resource Law Program; Ohio State University Extension

Property taxes are a fact of life for virtually all landowners in the United States, including farmers and ranchers. However, all states have laws that tax agricultural land differently than other lands to lower the amount of property taxes farmers and ranchers pay. The purposes of these “differential tax assessment” laws for farmland are varied, and can be to maintain the economic viability of farming, remove incentives to develop agricultural land, protect environmental benefits of farmland, and tax agricultural land according to its cost of community services. Generally, differential tax assessment discounts the value of the land to reflect its use for agricultural purposes rather than for residential, commercial, or industrial development. But no two state laws are exactly alike in the specifics of what land qualifies for the assessment, how to calculate the agricultural value of land, and penalties for removing land from agricultural use. This compilation presents each state’s provisions for differential tax assessment of agricultural land. Access this compilationPosted 2/18/19

A Snapshot of LLCs and Farming: How Farm Businesses have implemented the Limited Liability Company Structure in the Midwestern United States

Evin Bachelor, Law Fellow- Agricultural and Resource Law Program; Ohio State University Extension
Peggy Kirk Hall, Associate Professor- Agricultural and Resource Law Program; Ohio State University Extension

Attorneys and accountants often encourage farm owners to choose a business entity in order to reap a number of benefits of such organization. Depending upon the type of structure chosen, the benefits range from liability protection to tax benefits and from administrative ease to transitioning to the next generation. All fifty states allow the partnership, corporation, and Limited Liability Company (“LLC”) structures in some form. Many states will use a uniform statute, while others prefer to modify how those businesses may be structured in their state. This paper examines the history of the LLC, its common features among the states, and its usefulness for farming families and businesses. Download this articlePosted 2/15/19

Industrial Hemp Laws: State-by-State

John Ogle, Research Fellow; National Agricultural Law Center
Rusty Rumley, Senior Staff Attorney; National Agricultural Law Center

Most states enacted industrial hemp laws after the passage of the 2014 Farm Bill, and with the 2018 Farm Bill further expanding the ability of farmers to grow industrial hemp under state or federal authority that number will only increase. Further, states with existing state regulatory schemes will also likely adapt their laws to comply with the language from the 2018 Farm Bill in order to grow this new industry in their state. While the overall statutory schemes may be similar, each state has noticeably different content in the specific details of the laws. This publication provides a categorization of typical and reoccurring provisions within industrial hemp laws that have been passed in various states. The primary aim of this compilation is to provide the researcher with a way to recognize and distinguish specific provisions have been included in the statutory language among various states. It was last updated on 12/31/18. Access this compilationPosted 2/1/19

Right-To-Farm: Typical Provisions

All fifty states have enacted right-to-farm laws that seek to protect qualifying farmers and ranchers from nuisance lawsuits filed by individuals who move into a rural area where normal farming operations exist, and who later use nuisance actions to attempt to stop those ongoing operations. While the overall statutory schemes might be similar, each state has noticeably different content in the specific details of the laws. This publication provides a categorization of typical and reoccurring provisions within right to farm laws that have been passed in various states. The primary aim of this compilation is to provide the researcher with a way to recognize and distinguish specific provisions have been included in the statutory language among states. It was last updated on 10/31/18. Access this compilation.Posted 1/31/19

Issue Brief: Conduit Theory Under the Clean Water Act

This short informational piece provides essential background, current events, relevant legal issues, and additional resources regarding a theory of using ground water as a conduit to channel pollutants from a point source to a Waters of the United States under the Clean Water Act. These theory expands the scope of the Clean Water Act within the United States as ground water in the past has been regulated under different regulatory schemes.. This article looks at the most recent case out of the Sixth Circuit and how it differs from the interpretation of the Fourth and Ninth Circuits. Download this article.Posted 1/8/19

James Wilkerson, Research Fellow; National Agricultural Law Center
Elizabeth Rumley, Senior Staff Attorney; National Agricultural Law Center

This short informational piece provides essential background, current events, relevant legal issues, and additional resources regarding the 9th Circuit’s 2018 order to ban chlorpyrifos. Further, it provides a current legal status to the case. Download this article. Posted 11/29/18

Issue Brief: The Organic Livestock and Poultry Practices Rule and Current Events

This short informational piece provides essential background, current events, relevant legal issues, and additional resources regarding a set of rules released and later withdrawn by USDA in regards to the National Organic Program. These rules would have governed the living conditions of livestock and poultry sold as organic within the United States. Further, it addresses the legal challenges to the withdrawal of those rules and provides a current legal status. Download this article. Posted 11/1/18

This short informational piece provides essential background, current events, relevant legal issues, and additional resources regarding a set of rules released and later withdrawn by GIPSA, the USDA sub-agency responsible for administration of the Packers and Stockyards Act, which governs livestock and poultry contracts. Further, it discusses a legal challenge to the withdrawal of the regulations and provides a current legal status. Download this article. Posted 10/18/18

Plant Based “Milk” Labeling

The definition of “milk” may not be as simple as it appears. With alternatives such as soymilk, almond milk, and hemp milk commanding a larger share of the market, dairy advocates are questioning the use of the word “milk” in their labels. This article looks at the arguments on both sides concerning both the FDA definition of milk as well as the 1st Amendment discussion regarding the use of specific words. Download this article. Posted 10/17/18

Issue Brief: Smithfield Foods and Right to Farm in North Carolina

Rusty Rumley, Senior Staff Attorney; National Agricultural Law Center

This short informational piece provides essential background, current events, relevant legal issues, and additional resources regarding a recent series of North Carolina cases involving nuisance claims against swine farms. Specifically, it describes the cases in North Carolina and explains why the right to farm statute did not apply to those operations in this specific case. Download this article. Posted 10/10/18

Issue Brief: Renewable Fuel Standard: Establishment & Current Events

This short informational piece provides essential background, current events, relevant legal issues, and additional resources regarding the establishment of the Renewable Fuel Standard, along with current events and controversies. Download this article. Posted 10/8/18

This short informational piece provides essential background, current events, relevant legal issues, and additional resources regarding a petition that has been filed with the Food Safety Inspection Service asking for changes in policy regarding what meat products can bear the “Product of U.S.A.” label. Download this article. Posted 8/31/18

Cattle Traceability: Potential Legal Implications

As the cattle industry considers implementation of a farm-to-fork traceability system, concerns about the legal implications consequential to that system have been raised. This paper will outline those concerns, including privacy concerns as well as potential legal theories under which cattle producers and finishers may either be protected or held liable. Download this article. Posted 8/31/18

Definition of “Beer” in terms of ABV or ABW, by State

Amie Alexander, National Agricultural Law Center
Harrison Pittman, National Agricultural Law Center

The default definition for “beer” under federal law is greater than 0.5% alcohol by volume (ABV). With the recent rise in home and microbrewing, some states have implemented more specific definitions of what may be labeled and sold as “beer.” This chart lays out applicable state law dealing with the definition of beer, whether it is defined as ABV or alcohol by weight (ABW), and any additional distinctions dealing with the definition of beer. Notably, some states have begun to add distinctions between the definitions of low and high alcohol content beers. Download this article. Posted 2/12/18

Recent regulations passed by the Federal Motor Carrier Safety Administration (FMCSA) have led to much concern in the agricultural industry. These regulations address the need for electronic logging devices on vehicles hauling property, including horses and livestock. The rules are complex and can be confusing, particularly for people involved in agriculture, stock and horse showing, and rodeoing who are not engaged in the commercial trucking business and may have never dealt with these regulations before. This outline, focused specifically on agriculture, attempts to assist a hauler in determining whether the requirements of a commercial driver’s license or an electronic logging device may apply. Download this article. Posted 2/2/18, updated 3/29/18

Potential Spray Drift Damage: What Steps to Take?

Tiffany Dowell Lashmet, Texas A&M AgriLife Extension Service

As many farmers know all too well, applications of various pesticides can result in drift and cause damage to neighboring property owners. In recent years, incidences of spray drift damage have been frequent and well-publicized. In the event a farmer discovers damage to his or her own crop, this article details some important steps for the injured producer to take. Download this article. Posted 10/25/17

On July 15, 2016, the USDA Agricultural Marketing Service (AMS) issued a proposed rule that seeks to provide beef producers in certain states the option of “redirecting” to the Cattlemen’s Beef Promotion and Research Board the full, federally-required assessment of one dollar per head sold. Redirection deprives a state’s Qualified State Beef Council of funding it would have otherwise retained and expended in accordance with the Beef Promotion and Research Act of 1985 (Beef Act) and accompanying regulations- the Beef Act and Beef Promotion and Research Order (Beef Order). This article discusses AMS’s existing policy of “redirection”, the AMS proposed rule, and how redirection appears to be incompatible with the plain language of the Beef Act and Order. Download this article. Posted 9/1/17

On July 15, 2016, the USDA Agricultural Marketing Service (AMS) issued a proposed rule that seeks to provide soybean producers in certain states the option of “redirecting” to the United Soybean Board the full, federally-required assessment of one-half of one percent of net market price of soybeans. Redirection deprives a state’s Qualified State Soybean Board of funding it would have otherwise retained and expended in accordance with the Soybean Promotion, Research, and Consumer Information Act (Soybean Act) and accompanying regulations- the Soybean Promotion, Research, and Consumer Information Order (Soybean Order). This article discusses AMS’s existing policy of “redirection”, the AMS proposed rule, and how redirection appears to be incompatible with the plain language of the Soybean Act and Order. Download this article. Posted 8/21/17

A new section of the Food Safety Modernization Act (FSMA) required FDA to promulgate regulations that require animal food facilities that are required to establish and implement a food safety system that includes hazard analysis and risk-based preventive controls. Major provisions of the final rule implementing this section include those discussing current Good Manufacturing Practices, Hazard Analysis and Risk-Based Preventive Controls, supply-chain controls, and staggered compliance timelines. This article, prepared as a project of the National Agricultural and Food Law Consortium, discusses and analyzes the major provisions of that rule. Download this article. Posted 6/1/17

Exempt Wells and Agriculture

Jesse J. Richardson, Jr. & Iris Aloi, West Virginia University College of Law

In some states, primarily in the western United States, the doctrine of prior appropriation is used to determine water rights. Generally speaking, under this doctrine the first landowner to divert the water to beneficial use gains priority right in the amount that is used. In times of shortage, the first user gets all of the water to which he is entitled, the second user gets all of their water, and so on, until there is no more water to appropriate. However, some states have created exemptions from this doctrine for certain types of wells, known as “exempt wells,” which typically withdraw only limited quantities of water or wells used for specific purposes, such as domestic use or livestock watering. This paper discusses the allowances for exempt agricultural wells in the states that allow them, via an explanatory text and a table that allows comparison between the states. Download this article. Posted 5/18/17

Water Rights Table

Jesse J. Richardson, Jr. & Iris Aloi, West Virginia University College of Law

This publication consists of two tables with information regarding water rights among the states. Table 1 summarizes each state’s common law water rights for both surface and percolating ground water, as well as whether the state has statutory rules that modify the common law rule. Table 2 briefly summarizes the type of regulated riparian requirements, the threshold at which the requirements apply, grandfathered water withdrawals and exemptions for those states that have regulated riparian rules. Download this article. Posted 5/18/17

The Veterinary Feed Directive Rules for Veterinarians: A Practical Guide for the Practicing Veterinarian

Lance Roasa, DVM, MS, JD

The transition of commonly used antibiotics away from production based -label claims to Veterinary Feed Directive (VFD) status is one of the largest regulatory changes to food animal veterinary practice in decades. This purpose of this document, prepared as a project of the National Agricultural and Food Law Consortium, is to aggregate information, aid veterinarians and their practices in making the transition, and provide practical solutions to questions created by the new VFD rules. Download this article. Posted 4/14/17

Beef, Beans & the First Amendment: Disappearing Sovereignty for State Beef Councils and Soybean Boards?

Harrison Pittman, Director, National Agricultural Law Center

On May 2, 2016, a legal action challenging the constitutionality of a key aspect of the national beef research and promotion program established by the Beef Promotion and Research Act of 1985 (Beef Act) was filed in federal district court in Montana. The suit asserted that the portion of the federally-mandated one-dollar-per-head of cattle assessment retained by the Montana Beef Council constitutes a “government-compelled subsidy of the speech of a private entity” which is unconstitutional under the First Amendment of the United States Constitution. The case and surrounding regulatory actionraises legal issues that could significantly impact the beef and soybean research and promotion programs, specifically including a loss of state sovereignty in the operation and administration of state beef councils and soybean boards throughout the United States. These issues warrant careful consideration by any person, entity, or institution that pays, collects, remits, expends, administers, or is otherwise impacted by the national beef and soybean research and promotion programs, and are discussed in this article. Download this article. Posted 2/9/17

Lashmet, et al., Texas A&M, Oklahoma State University and the National Agricultural Law Center

This handbook was created through a Southern Risk Management Education grant to address common leasing issues that landowners, ranchers, and attorneys in Oklahoma, Texas and Arkansas face. This project was a collaborative effort between Texas A&M, Oklahoma State University, and the National Agricultural Law Center. The book explains the reasoning behind requiring a written lease, determining the fair market rental value for a piece of property, ways to address liability concerns, checklists of things to consider when drafting a lease, and finally sample hunting, livestock and grazing lease examples. Download this book. Posted 6/28/16

Indiana Direct Farm Business Guide

A. Bryan Endres, Lisa Schlessinger, University of Illinois at Urbana-Champaign and the National Agricultural Law Center

This book, a collaboration between the National Agricultural Law Center and the University of Illinois at Urbana-Champaign, focuses on producers engaged in direct marketing in the state of Indiana, but also addresses a wide range of legal and business opportunities and challenges faced by these producers across the country. After an overview of the federal and state regulatory system, the book discusses issues important to the farming operation, including the structure of the agricultural business, marketing plans for the business, taxation concerns and labor and employment issues. It then discusses the regulation of certain specific products, including dairy, eggs, fish and other aquatics, produce, grains and cereals, honey, meat and poultry and organic marketing. It finishes with an extensive glossary of terms relevant to the legal and production concerns raised in the book. Download this book. Posted 8/12/15

Louisiana Direct Farm Business Guide

Michaela Tarr, Corey Brown, Rusty Rumley, University of Illinois at Urbana-Champaign and the National Agricultural Law Center

This book, a collaboration between the National Agricultural Law Center and the University of Illinois at Urbana-Champaign, focuses on producers engaged in direct marketing in the state of Louisiana, but also addresses a wide range of legal and business opportunities and challenges faced by these producers across the country. After an overview of the federal and state regulatory system, the book discusses issues important to the farming operation, including the structure of the agricultural business, marketing plans for the business, taxation concerns and labor and employment issues. It then discusses the regulation of certain specific products, including dairy, eggs, fish and other aquatics, produce, grains and cereals, honey, meat and poultry and organic marketing. It finishes with an extensive glossary of terms relevant to the legal and production concerns raised in the book. Download this book. Posted 7/29/15

Michigan Direct Farm Business Guide

A. Bryan Endres, Lisa R. Schlessinger, Rachel Armstrong,University of Illinois at Urbana-Champaign and the National Agricultural Law Center

This book, a collaboration between the National Agricultural Law Center and the University of Illinois at Urbana-Champaign, focuses on producers engaged in direct marketing in the state of Michigan, but also addresses a wide range of legal and business opportunities and challenges faced by these producers across the country. After an overview of the federal and state regulatory system, the book discusses issues important to the farming operation, including the structure of the agricultural business, marketing plans for the business, taxation concerns and labor and employment issues. It then discusses the regulation of certain specific products, including dairy, eggs, fish and other aquatics, produce, grains and cereals, honey and maple syrup, meat and poultry and organic marketing. It finishes with an extensive glossary of terms relevant to the legal and production concerns raised in the book. Download this book. Posted 6/10/15

Factsheet: Arkansas Grain Warehouse Laws

Jessica Fritts & Elizabeth Rumley, The National Agricultural Law Center

Arkansas is one of thirty states that have laws in place to regulate grain warehouses within the state. As such, a warehouse operator may choose to be regulated under the Arkansas state laws or the federal laws. This factsheet explains and discusses the possibilities for warehouse licensing within the state of Arkansas. Download this factsheet. Posted 6/1/15

Factsheet: Grain Warehouse Laws

Jessica Fritts & Elizabeth Rumley, The National Agricultural Law Center

Warehouses are normally involved in the storage of grain and other farm commodities. Depending on the location, warehouses may be licensed with the federal government, the applicable state government, or not licensed at all. This factsheet explains and discusses the possibilities for warehouse licensing within the United States. Download this factsheet. Posted 6/1/15

Kentucky Direct Farm Business Guide

Michaela Tarr, Stacey Revels, Rusty Rumley, University of Illinois at Urbana-Champaign and the National Agricultural Law Center

This book, a collaboration between the National Agricultural Law Center and the University of Illinois at Urbana-Champaign, focuses on producers engaged in direct marketing in the state of Kentucky, but also addresses a wide range of legal and business opportunities and challenges faced by these producers across the country. After an overview of the federal and state regulatory system, the book discusses issues important to the farming operation, including the structure of the agricultural business, marketing plans for the business, taxation concerns and labor and employment issues. It then discusses the regulation of certain specific products, including dairy, eggs, fish and other aquatics, produce, grains and cereals, honey and maple syrup, meat and poultry and organic marketing. It finishes with an extensive glossary of terms relevant to the legal and production concerns raised in the book. Download this book. Posted 2/22/15

State Regulation of Grain Sales & Storage

Jessica Fritts, Elizabeth Rumley, The National Agricultural Law Center

State governments have set up different statutory schemes regulating grain dealers and warehouses. Warehouses are involved in the storage of grain, while a grain dealer is a person or entity involved in buying, receiving or exchanging grain from the grower. For these businesses, regulatory requirements vary greatly from state to state, ranging from no regulation at all to very significant regulation, including licensing, bonding, statutory liens, and civil and criminal sanctions.This factsheet is a companion piece to a center compilation with citations to specific statutes (found here). It provides a large scale overview of how states have chosen to address this issue, and may be helpful to those interested in making, changing, or simply understanding state policy regarding these businesses. Download this factsheet. Posted 1/13/15

Pennsylvania Direct Farm Business Guide

Michaela Tarr, Stacey Revels, Rusty Rumley, University of Illinois at Urbana-Champaign and the National Agricultural Law Center

This book, a collaboration between the National Agricultural Law Center and the University of Illinois at Urbana-Champaign, focuses on producers engaged in direct marketing in the state of Pennsylvania, but also addresses a wide range of legal and business opportunities and challenges faced by these producers across the country. After an overview of the federal and state regulatory system, the book discusses issues important to the farming operation, including the structure of the agricultural business, marketing plans for the business, taxation concerns and labor and employment issues. It then discusses the regulation of certain specific products, including dairy, eggs, fish and other aquatics, produce, grains and cereals, honey and maple syrup, meat and poultry and organic marketing. It finishes with an extensive glossary of terms relevant to the legal and production concerns raised in the book. Download this book. Posted 11/21/14

UAVs and the Law

Rusty Rumley, Senior Staff Attorney National Agricultural Law Center

Interest in Unmanned Aerial Vehicles (UAV) has dramatically increased as a result of potential uses for agricultural operations. However, there are also significant concerns about the proliferation of UAVs, ranging from safety to privacy. This is coupled with a complex regulatory environment as the Federal Aviation Administration (FAA) is working to craft standards that address current and future issues that may arise with UAV use. This factsheet addresses some of the legal concerns faced by UAV operators across the country. Download this article. Posted September 17, 2014.

South Carolina Direct Farm Business Guide

Michaela Tarr, Stacey Revels, Rusty Rumley, University of Illinois at Urbana-Champaign and the National Agricultural Law Center

This book, a collaboration between the National Agricultural Law Center and the University of Illinois at Urbana-Champaign, focuses on producers engaged in direct marketing in the state of South Carolina, but also addresses a wide range of legal and business opportunities and challenges faced by these producers across the country. After an overview of the federal and state regulatory system, the book discusses issues important to the farming operation, including the structure of the agricultural business, marketing plans for the business, taxation concerns and labor and employment issues. It then discusses the regulation of certain specific products, including dairy, eggs, fish and other aquatics, produce, grains and cereals, honey and maple syrup, meat and poultry and organic marketing. It finishes with an extensive glossary of terms relevant to the legal and production concerns raised in the book. Download this book. Posted 11/12/13

Nebraska Direct Farm Business Guide

A. Bryan Endres, Rachel H. Armstrong, University of Illinois at Urbana-Champaign and the National Agricultural Law Center

This book, a collaboration between the National Agricultural Law Center and the University of Illinois at Urbana-Champaign, focuses on producers engaged in direct marketing in the state of Nebraska, but also addresses a wide range of legal and business opportunities and challenges faced by these producers across the country. After an overview of the federal and state regulatory system, the book discusses issues important to the farming operation, including the structure of the agricultural business, marketing plans for the business, taxation concerns and labor and employment issues. It then discusses the regulation of certain specific products, including dairy, eggs, fish and other aquatics, produce, grains and cereals, honey and maple syrup, meat and poultry and organic marketing. It finishes with an extensive glossary of terms relevant to the legal and production concerns raised in the book. Download this book. Posted 9/19/13

Ohio Direct Farm Business Guide

A. Bryan Endres, Rachel H. Armstrong, University of Illinois at Urbana-Champaign and the National Agricultural Law Center

This book, a collaboration between the National Agricultural Law Center and the University of Illinois at Urbana-Champaign, focuses on producers engaged in direct marketing in the state of Ohio, but also addresses a wide range of legal and business opportunities and challenges faced by these producers across the country. After an overview of the federal and state regulatory system, the book discusses issues important to the farming operation, including the structure of the agricultural business, marketing plans for the business, taxation concerns and labor and employment issues. It then discusses the regulation of certain specific products, including dairy, eggs, fish and other aquatics, produce, grains and cereals, honey and maple syrup, meat and poultry and organic marketing. It finishes with an extensive glossary of terms relevant to the legal and production concerns raised in the book. Download this book. Posted 9/19/13

Iowa Direct Farm Business Guide

A. Bryan Endres, Rachel H. Armstrong, University of Illinois at Urbana-Champaign and the National Agricultural Law Center

This book, a collaboration between the National Agricultural Law Center and the University of Illinois at Urbana-Champaign, focuses on producers engaged in direct marketing in the state of Iowa, but also addresses a wide range of legal and business opportunities and challenges faced by these producers across the country. After an overview of the federal and state regulatory system, the book discusses issues important to the farming operation, including the structure of the agricultural business, marketing plans for the business, taxation concerns and labor and employment issues. It then discusses the regulation of certain specific products, including dairy, eggs, fish and other aquatics, produce, grains and cereals, honey and maple syrup, meat and poultry and organic marketing. It finishes with an extensive glossary of terms relevant to the legal and production concerns raised in the book. Download this book. Posted 9/19/13

A Practitioner’s Guide to the Litigation of Federally Reinsured Crop Insurance Claims

Risk management is quickly moving in directions that will present a fresh set of challenges for today’s farmers and the attorneys who represent them. Farmers have increased their reliance on crop insurance as a tool in their risk management portfolio, and signals from federal policy makers indicate that crop insurance will become more important in terms of the federal safety net for agriculture. This article focuses on procedural issues that arise when a farmer believes that his or her crop insurance claim has been unfairly denied, as well as basic background information on the structure of U.S. crop insurance. It also outlines the process and particularities involved in the litigation and resolution of crop insurance disputes. Download this article.

Georgia Direct Farm Business Guide

Michaela Tarr, Stacy Revels, Rusty Rumley, University of Illinois at Urbana-Champaign and the National Agricultural Law Center

This book, a collaboration between the National Agricultural Law Center and the University of Illinois at Urbana-Champaign, focuses on producers engaged in direct marketing in the state of Georgia, but also addresses a wide range of legal and business opportunities and challenges faced by these producers across the country. After an overview of the federal and state regulatory system, the book discusses issues important to the farming operation, including the structure of the agricultural business, marketing plans for the business, taxation concerns and labor and employment issues. It then discusses the regulation of certain specific products, including dairy, eggs, fish and other aquatics, produce, grains and cereals, honey and maple syrup, meat and poultry and organic marketing. It finishes with an extensive glossary of terms relevant to the legal and production concerns raised in the book. Download this book.

Texas Direct Farm Business Guide

Michaela Tarr, Charles Cunningham, Rusty Rumley, University of Illinois at Urbana-Champaign and the National Agricultural Law Center

This book, a collaboration between the National Agricultural Law Center and the University of Illinois at Urbana-Champaign, focuses on producers engaged in direct marketing in the state of Texas, but also addresses a wide range of legal and business opportunities and challenges faced by these producers across the country. After an overview of the federal and state regulatory system, the book discusses issues important to the farming operation, including the structure of the agricultural business, marketing plans for the business, taxation concerns and labor and employment issues. It then discusses the regulation of certain specific products, including dairy, eggs, fish and other aquatics, produce, grains and cereals, honey and maple syrup, meat and poultry and organic marketing. It finishes with an extensive glossary of terms relevant to the legal and production concerns raised in the book. Download this book.

New York Direct Farm Business Guide

A. Bryan Endres, Lisa R. Schlessinger, Alexander B. Gura University of Illinois at Urbana-Champaign and the National Agricultural Law Center

This book, a collaboration between the National Agricultural Law Center and the University of Illinois at Urbana-Champaign, focuses on producers engaged in direct marketing in the state of New York, but also addresses a wide range of legal and business opportunities and challenges faced by these producers across the country. After an overview of the federal and state regulatory system, the book discusses issues important to the farming operation, including the structure of the agricultural business, marketing plans for the business, taxation concerns and labor and employment issues. It then discusses the regulation of certain specific products, including dairy, eggs, fish and other aquatics, produce, grains and cereals, honey and maple syrup, meat and poultry and organic marketing. It finishes with an extensive glossary of terms relevant to the legal and production concerns raised in the book. Download this book.

Colorado Direct Farm Business Guide

A. Bryan Endres, Lisa R. Schlessinger, Daniel J. Klopfenstein University of Illinois at Urbana-Champaign and the National Agricultural Law Center

This book, a collaboration between the National Agricultural Law Center and the University of Illinois at Urbana-Champaign, focuses on producers engaged in direct marketing in the state of Colorado, but also addresses a wide range of legal and business opportunities and challenges faced by these producers across the country. After an overview of the federal and state regulatory system, the book discusses issues important to the farming operation, including the structure of the agricultural business, marketing plans for the business, taxation concerns and labor and employment issues. It then discusses the regulation of certain specific products, including dairy, eggs, fish and other aquatics, produce, grains and cereals, honey and maple syrup, meat and poultry and organic marketing. It finishes with an extensive glossary of terms relevant to the legal and production concerns raised in the book. Download this book.

Florida Direct Farm Business Guide

Michaela Tarr, Stacy Revels, Rusty Rumley University of Illinois at Urbana-Champaign and the National Agricultural Law Center

This book, a collaboration between the National Agricultural Law Center and the University of Illinois at Urbana-Champaign, focuses on producers engaged in direct marketing in the state of Florida, but also addresses a wide range of legal and business opportunities and challenges faced by these producers across the country. After an overview of the federal and state regulatory system, the book discusses issues important to the farming operation, including the structure of the agricultural business, marketing plans for the business, taxation concerns and labor and employment issues. It then discusses the regulation of certain specific products, including dairy, eggs, fish and other aquatics, produce, grains and cereals, honey and maple syrup, meat and poultry and organic marketing. It finishes with an extensive glossary of terms relevant to the legal and production concerns raised in the book. Download this book.

Alabama Direct Farm Business Guide

Michaela Tarr, Stacy Revels, Rusty RumleyUniversity of Illinois at Urbana-Champaign and the National Agricultural Law Center

This book, a collaboration between the National Agricultural Law Center and the University of Illinois at Urbana-Champaign, focuses on producers engaged in direct marketing in the state of Alabama, but also addresses a wide range of legal and business opportunities and challenges faced by these producers across the country. After an overview of the federal and state regulatory system, the book discusses issues important to the farming operation, including the structure of the agricultural business, marketing plans for the business, taxation concerns and labor and employment issues. It then discusses the regulation of certain specific products, including dairy, eggs, fish and other aquatics, produce, grains and cereals, honey and maple syrup, meat and poultry and organic marketing. It finishes with an extensive glossary of terms relevant to the legal and production concerns raised in the book. Download this book.

Mississippi Direct Farm Business Guide

Michaela Tarr, Charles Cunningham, Rusty RumleyUniversity of Illinois at Urbana-Champaign and the National Agricultural Law Center

This book, a collaboration between the National Agricultural Law Center and the University of Illinois at Urbana-Champaign, focuses on producers engaged in direct marketing in the state of Mississippi, but also addresses a wide range of legal and business opportunities and challenges faced by these producers across the country. After an overview of the federal and state regulatory system, the book discusses issues important to the farming operation, including the structure of the agricultural business, marketing plans for the business, taxation concerns and labor and employment issues. It then discusses the regulation of certain specific products, including dairy, eggs, fish and other aquatics, produce, grains and cereals, honey and maple syrup, meat and poultry and organic marketing. It finishes with an extensive glossary of terms relevant to the legal and production concerns raised in the book. Download this book

Wind Energy Leasing Handbook — Workbook

Shannon FerrellOklahoma State University and

Rusty W. RumleyStaff Attorney National Agricultural Law Center

This handbook was written in conjunction with four workshops held in Oklahoma and Arkansas on legal risks associated with entering into a wind energy leasing contracts and how best to manage the opportunities and issues that may arise during the process. The book consists of four chapters; Understanding the Electrical Power Industry, Understanding the Wind Power Industry, Understanding Wind Energy Agreements, and Impacts of Wind Leasing Projects. This book was written by Dr. Shannon Ferrell and Steve Stadler from Oklahoma State University, and Rusty Rumley and Charles Cunningham from the National Agricultural Law Center. Download this article.Posted November 30, 2012.

Crop Insurance Arbitration: What is Arbitration, When is it Required, and How Does it Work?

Grant BallardCenter Research Consultant National Agricultural Law Center

The basic provisions of the common crop insurance policy provide that arbitration is often the required course of action for a producer who feels that his crop insurance claim has been improperly denied. While crop insurance is widely used by producers throughout the United States, many producers are not familiar with the arbitration requirement or the arbitration process. This article provides an overview of the arbitration and the arbitration clause found within the common crop insurance policy with the hopes of providing clarity about the arbitration requirement as well as arbitration as a dispute resolution method. Download this article.Posted October 9, 2012.

Perishable Agricultural Commodities Act Factsheet

Harrison M. PittmanCenter Director National Agricultural Law Center

The Perishable Agricultural Commodities Act, or “PACA,” was enacted in 1930 to regulate the marketing of perishable agricultural commodities in interstate and foreign commerce. The primary purposes of the PACA are to prevent unfair and fraudulent conduct in the marketing and selling of perishable agricultural commodities and to facilitate the orderly flow of perishable agricultural commodities in interstate and foreign commerce. PACA is important for many specialty crop producers because it governs important aspects of transactions between sellers and buyers of fresh and frozen fruits and vegetables. In particular, the unfair conduct and the statutory trust provisions are particularly significant. This factsheet addresses unfair conduct, licensing, and the statutory trust provisions found within the Perishable Agricultural Commodities Act. Download this article.Posted September 28, 2012.

Food Safety and Specialty Crops

Rusty W. RumleyStaff Attorney National Agricultural Law Center

Specialty crops are uniquely susceptible to the presence of foodborne diseases for several reasons. Many specialty crops are eaten uncooked, or with minimal processing and it is often difficult to fully clean or sanitize them depending on the specific fruit or vegetable. Issues such as regulations and liability are becoming increasingly important as technology improves. This factsheet address some of the legal concerns that specialty crop growers may face when marketing their product even with the recent advent of “cottage food” laws across the country. Download this article.Posted September 28, 2012.

Food Labeling for Specialty Crop Producers

Elizabeth R. RumleyStaff Attorney National Agricultural Law Center

The requirements and restrictions on food labels are an important part of the food safety and regulation system in the United States. The topic of “food labeling,” however, is very broad, encompassing several specific areas of the law that may affect specialty crop producers. This factsheet address each of these topics briefly to provide growers with a general ideal about what each of these claims mean legally. Download this article.Posted September 28, 2012.

Agricultural Contracting

Rusty W. RumleyStaff Attorney National Agricultural Law Center

Contracts are part of everyday life, but are especially important to individuals who are engaged in business. While contracts are entered into and fulfilled every day, the contracts that we often think about are those that are not completed and the consequences that flow from it. This factsheet address some of the basics of the contracting process, what can be done if a contract has been breached, and tips to consider before entering into a contract. Download this article.Posted September 28, 2012.

3rd Party Food Safety Audits

One of the best tools for increasing food safety is the third party audit that evaluates certain production practices know to produce better fruits and vegetables. A third party audit is when a totally independent party visits the farm production area and evaluates the field and/or facility in terms of its ability to produce safety, quality foods. This factsheet address some of the issues and benefits that third party food safety audits can provide to growers of specialty crops both in Arkansas and across the rest of the country. Download this articlePosted September 28, 2012.

Non-GMO Labeling

Consumers are becoming extremely interested in knowing about aspects of their food such as production methods and what ingredients are included in the final product. The labeling of food products is regulated primarily by the Food and Drug Administration (FDA), but the requirements for the usage of certain labels can vary significantly. Labels such as “Certified Organic” require rigid adherence to the rules in order to place this label upon a product. Other labels do not have this same level of scrutiny. This factsheet address some of the labeling issues found with listing products as “non-gmo” (i.e. not using genetically modified organisms). Download this article.Posted September 27, 2012.

Crop Insurance for Edamame

Rusty W. RumleyStaff Attorney National Agricultural Law Center

One of the critical issues that many farmers face is the use of crop insurance to mitigate the risks that they face from farming. Drought, hail, pests, flooding, and price declines are just some of those risks. Many crops are eligible for federally backed crop insurance to prevent one of these occurrences from financially devastating a farmer. There are some crops; however, that may not qualify for the protection provided by one of the many different forms of crop insurance. This factsheet address some of the issues that are facing edamame (or immature soybean) growers across the country. Download this article.Posted September 27, 2012.

Approval of Pesticides

Rusty W. RumleyStaff Attorney National Agricultural Law Center

Since the 1950s the use of pesticides has developed rapidly. With over 18,000 pesticides currently in use there must exist a system by which these chemicals can be approved and recertified as time and technology advance. The Environmental Protection Agency (EPA) is tasked with approving pesticides for use in a wide variety of applications. Because of unique circumstances, state agencies may also be tasked with approving pesticides for a specific purpose. This factsheet address some of the approval process for both the EPA and for the circumstances where a state agency may need to address problems that are unique to their situation. Download this article.Posted September 27, 2012.

Using Alternative Enterprises and Recreational Development to Bolster Farm Incomes — Workbook

Rusty W. RumleyStaff Attorney National Agricultural Law Center and Adam Tullos Mississippi State University Extension

This workbook compilation accompanies the six-part webinar series on developing land for recreational purposes such as nature and agritourism presented by the Mississippi State Natural Resources Enterprise Center and the National Agricultural Law Center in the spring of 2012. Download this article.Posted August 11, 2012.

Grant BallardCenter Research Consultant National Agricultural Law Center

It is widely understood that farming can be a risky business. Agricultural producers often themselves at the mercy of the weather, and, in recent years, it seems that weather conditions have been increasingly extreme. Both flood and drought have plagued producers across our country, and the presence of these weather events during planting season has led to increased interest in and confusion about prevented planting crop insurance provisions. This article highlights some of the basic prevented planting provisions issues and summarizes a few issues relating to coverage under prevented planting crop insurance. Download this presentation.

Grant BallardCenter Research Consultant, National Agricultural Law Center

Crop insurance is a widely used risk management tool for American agricultural producers. Currently, over 100 different crops are insurable under the federal crop insurance program. In its most basic sense, crop insurance can provide farmers with financial protection against natural losses to insured crops. Crop insurance quickly becomes more complex, however, as different types of crop insurance policies often have distinct terms and conditions. Moreover, the structure of the federal crop insurance program can be confusing as the program is administered by the federal government, yet sold and serviced by approved private insurance companies. In order for producers and others to effectively recognize the current and emerging legal issues associated with crop insurance, it is important that the unique nature of the administration and structure of the crop insurance program be understood. Download this presentation.

Legal Issues in Animal Agriculture: Regulating Living Space

Elizabeth RumleyStaff Attorney, National Agricultural Law Center

This presentation, most recently updated in May 2012, has been given in a number of forums, including as a National Agricultural Law Center webinar. It focuses on the emerging legal and policy issues dealing with farm animal confinement, with a special emphasis on the statutory evolution behind them. The presentation is designed to be useful to anyone — attorneys, lobbyists, federal and state policymakers, extension personnel, producers, and others — with an interest in a definitive understanding of food animal confinement laws in the United States. Download this presentation.

This workbook was created as part of Southern Risk Management Education Center grant to conduct workshops for landowners, foresters, and loggers in Louisiana and Arkansas. Numerous topics are covered including wildlife management, timber contracts, hunting leases, landowner liability, agritourism, and estate planning. Download this presentation. Posted: April 30, 2012

Filing a Crop Insurance Claim: An Overview for Producers

Grant BallardAssociate Attorney Banks Law Firm PLLC

Federal crop insurance is an important risk management tool for farmers throughout the United States. Once a loss occurs, farmers may have difficulty navigating the claims process, especially given some of the complexities associated with crop insurance policies. The information set out below is provided to assist producers in understanding basic components of the claims process once a loss occurs. Download this article.Posted April 19, 2012

Proposed Changes for Child Labor in Agriculture

Rusty RumleyStaff Attorney National Agricultural Law Center

This paper was written on October 16, 2011 and summarizes the proposed changes to child labor regulations that was introduced by the Department of Labor. The paper contains a brief overview of the regulations, the parental exemption afforded by the Fair Labor Standards Act, and a more detailed breakdown of the proposed changes and clarifications to the existing regulations. Download this presentation.Posted: Oct. 26, 2011

Agricultural Estate Planning – PowerPoint Presentation

Rusty W. RumleyStaff Attorney National Agricultural Law Center

This presentation was first given on February 18 2011 to participants at the “Arkansas Rural Life Conference” in Pine Bluff Arkansas. It discusses the current status of the federal estate and gift tax, intestate succession, estate planning tools, and information that must be provided by an agricultural operator to develop a successful estate plan. Download this presentationPosted April 27, 2011.

States’ “Fence Law” Statutes

Rusty Rumley, Staff Attorney National Agricultural Law Center

All 50 states have enacted statutes that address issues of livestock running at large and the fences that may or may not be required to keep them confined. These “fence law” statutes can vary widely from state to state. Many states require owners of livestock to secure the livestock on property that they own or lease; however there are some western states that still follow the “open range” doctrine. The “open range” states reverse the duty to fence in livestock and allow livestock to roam in certain remote parts of the state while requiring other landowners to fence off their land if they wish to keep livestock off of their property. States’ Fence Law Statutes provides the statutory text of each state’s fence and livestock running at large statutes, along with the date of its possible expiration. The primary aim of this compilation is to provide the researcher with easy and free access to a state’s statutory language by simply clicking on the state’s image in the map below. Download this compilation.

Bull Leasing Contracts

Rusty W. RumleyStaff Attorney National Agricultural Law Center

Leasing, at the fundamental level, is the temporary exchange of goods or real property for some form of compensation. One relatively new use for lease agreements is the renting of bulls during the breeding season. This provides ranchers with the opportunity to introduce better genetics into their herds without the capital overlay of purchasing a bull. Leasing is an alternative to purchasing a bull; however there are issues that must be addressed before entering into such a lease. This factsheet address some of the health and performance concerns that exist as well as the liability issues that may arise during the lease and what actions can be taken to limit these risks. Download this article. Posted March 16, 2011.

Written Sugarcane Leases: Protecting the Interests of the Farmer and Landowner

Rusty W. RumleyStaff Attorney and

Benjamin L. ThomasGraduate Assistant National Agricultural Law Center

Although oral agricultural leases are still prevalent throughout the country, problems can and do arise when these leases need to last longer than one year. Sugarcane leases in particular are vulnerable to the problems associated with oral leases due to their extended length and the significant capital investment that must be made in order to grow and harvest the crop. This factsheet touches on some of the potential problems that can arise under oral leases and what steps can be taken to address them if a written contract is adopted. Download this article. Posted March 16, 2011.

An Overview of Special Use Valuation Under 26 U.S.C.A. § 2032A

Rusty W. RumleyStaff Attorney National Agricultural Law Center

Congress created an estate tax provision that allows for the special valuation of real property that is used in a closely held business or farming operation and transferred to a qualified person at the death of the decedent. Instead of valuing the property at the fair market value, which values the property at its highest and best use, the special use valuation allows for the property to be valued at its current qualified purpose potentially saving up to $1 million in estate taxes. This overview goes through the numerous requirements that must be met in order to qualify under this provision of the tax code. Download this article. Posted March 16, 2011.

Legal and Business Guide for Specialty Crop Producers

National Agricultural Law Center and University of Arkansas Division of Agriculture

The Specialty Crops Competitiveness Act of 2004 authorized the United States Department of Agriculture to make grants available to provide assistance for specialty crops, while the 2008 Farm Bill amended the act and authorized the USDA to provide grants to enhance the competitiveness of specialty crops. This book is the result of one of those grants, and is meant to address a wide range of legal and business opportunities and challenges faced by specialty crop producers in the state of Arkansas. It includes chapters on contract laws, food safety, food labeling, agricultural labor, business organizations, and the application of the Perishable Agricultural Commodities Act. In addition, since the industry is also confronted by other unique challenges that directly affect competitiveness, it also includes a chapter addressing the marketing of various types of specialty crops, and one discussing the third party audit system. Download this book. Posted March 1, 2011.

Illinois Direct Farm Business Guide

This book, a collaboration between the National Agricultural Law Center and the University of Illinois at Urbana-Champaign, focuses on producers engaged in direct marketing in the state of Illinois, but also addresses a wide range of legal and business opportunities and challenges faced by these producers across the country. After an overview of the federal and state regulatory system, the book discusses issues important to the farming operation, including the structure of the agricultural business, marketing plans for the business, taxation concerns and labor and employment issues. It then discusses the regulation of certain specific products, including dairy, eggs, fish and other aquatics, produce, grains and cereals, honey and maple syrup, meat and poultry and organic marketing. It finishes with an extensive glossary of terms relevant to the legal and production concerns raised in the book. Download this book. Posted March 1, 2011.

Arkansas Direct Farm Business Guide

This book, a collaboration between the National Agricultural Law Center and the University of Illinois at Urbana-Champaign, focuses on producers engaged in direct marketing in the state of Arkansas, but also addresses a wide range of legal and business opportunities and challenges faced by these producers across the country. After an overview of the federal and state regulatory system, the book discusses issues important to the farming operation, including the structure of the agricultural business, marketing plans for the business, taxation concerns and labor and employment issues. It then discusses the regulation of certain specific products, including dairy, eggs, fish and other aquatics, produce, grains and cereals, honey and maple syrup, meat and poultry and organic marketing. It finishes with an extensive glossary of terms relevant to the legal and production concerns raised in the book. Download this book. Posted March 1, 2011.

Water Quality Credit Trading: A Primer of Background Material

David R. JacksonGraduate Assistant National Agricultural Law Center

Over the past ten to twenty years, an increased interest in water quality trading has emerged as a way to address water pollution in key U.S. watersheds. Water quality credit trading establishes a market for pollution reduction efforts, and assigns a dollar value for each effort. Polluters with a lower cost of pollution reduction may choose to sell reduction credits to polluters with high costs of pollution reduction. This new type of market-based solution for pollution could have major implications for the agricultural sector as it would enable farmers to identify and get paid for their efforts to reduce pollutants they are generating. This brief article is a reference resource designed to provide a basic background on water quality trading and is not an exhaustive treatment of the subject. The article provides historical background, basic information about water trading components, and links to key water quality credit trading websites for further information. Download this article. Posted November 18, 2010.

This presentation, most recently updated in September 2010, was given at a number of CLEs in Minnesota, Kansas, Arkansas and Oklahoma. It focuses on three emerging legal issues in the field of animal agriculture and discusses the history of the topics, their current status, and some possible future implications of the decisions that are being made. Topics covered in this presentation include the use of antimicrobials (including antibiotics) in livestock, a discussion of animal identification systems, and an overview of the farm animal confinement statutes that are becoming more prevalent in the United States. Download this presentation. Posted November 11, 2010.

The Clean Water Act: Current Status and Potential Changes – PowerPoint Presentation

Rusty W. RumleyStaff Attorney National Agricultural Law Center

This presentation was given on September 3 and September 10, 2010 to participants of the “Earth, Wind, and Water for the General Practitioner” CLE series put on by the Oklahoma Bar Association. It discusses the current jurisdictional limits of the Clean Water Act and the potential changes that may occur if the Clean Water Restoration Act is passed into law. Download this presentation. Posted November 11, 2010.

GIPSA’s Proposed Rule Changes: What Are They? How Might They Affect You? How Can You Affect Them? – PowerPoint Presentation

Center StaffNational Agricultural Law Center

This presentation was given at a series of producer-focused workshops organized and hosted by the National Agricultural Law Center on the topic of proposed GIPSA rules that- if finalized- would drastically change the way that producers, packers, dealers and contractors raise, buy, and sell livestock and poultry. These proposed regulations were issued on June 22, 2010, and the comment period is open until November 22, 2010. Topics include the role of GIPSA as an agency, the USDA rule-making process, an overview of the proposed rule changes themselves, and an explanation of how to submit comments on the proposed rules. Download this presentation. Posted November 8, 2010.

Outline of GIPSA’s Proposed Rule Changes – Workshop Handout

Center StaffNational Agricultural Law Center

GIPSA, the federal agency responsible for issuing regulations that govern contracting, buying and selling of livestock and poultry has proposed new rules on June 22, 2010 that- if finalized- would drastically change the way that producers, packers, dealers and contractors raise, buy, and sell livestock and poultry. In response to requests for information about the proposal, the National Agricultural Law Center organized and hosted a series of informational workshops, including a webinar, for livestock and poultry producers. This article is the handout that was given to attendees at the workshops, and it discusses the role of GIPSA as an agency, provides an overview of the proposed rule changes, reviews the UDSA rule-making process, and explains how to submit comments on the proposed rules. Download this article. Posted November 8, 2010.

GIPSA, the federal agency responsible for issuing regulations that govern contracting, buying and selling of livestock and poultry has proposed new rules on June 22, 2010 that- if finalized- would drastically change the way that producers, packers, dealers and contractors raise, buy, and sell livestock and poultry. In response to requests for information about the proposal, the National Agricultural Law Center organized and hosted a series of informational workshops, including this webinar, for livestock and poultry producers. The webinar was originally broadcast on October 14, 2010. It, like the other workshops, discusses the role of GIPSA as an agency, provides an overview of the proposed rule changes, reviews the UDSA rule-making process, and explains how to submit comments on the proposed rules. Before viewing the webinar, please click here to confirm your ability to connect to the server. View webinar recording. Posted November 8, 2010.

General Legal Issues for Community Farmers Market Managers to Consider – PowerPoint Presentation

Beth CrockerGeneral Counsel and Director of Legal Affairs South Carolina Department of Agriculture

This presentation is adapted from a program for a South Carolina Community Farmers Market Managers Workshop held on January 24, 2007. It discusses some general issues and liability concerns commonly confronted by communityh market managers, including business incorporation status, sales tax collection and tax exemptions, liability concerns, contract and lease terms, implementation of market rules and policies, and food safety compliance Download this presentation. Posted August 10, 2010.

States’ Animal Identification Statutes

On February 5, 2010, the Secretary of Agriculture, Tom Vilsack, announced the abandonment of the National Animal Identification System (“NAIS”), which was a voluntary federal program meant to identify and trace the movement of animals throughout their life cycle. NAIS was implemented in order to facilitate the quick identification of animals that had been exposed to a potential disease threat. Instead of NAIS, Secretary Vilsack explained that a new approach would be taken, with states and tribal governments bearing responsibility for their respective identification programs. Since the programs are now state-based, they will necessarily be governed by state-specific laws as well. This compilation of States’ Animal Identification Statutes provides the statutory text of each state’s laws dealing with animal identification programs, along with the date of its possible expiration. The primary aim of this compilation is to provide the researcher with easy and free access to a state’s statutory language by simply clicking on the state’s image in the map provided. Download this compilation. Posted: July 21, 2010

Farmer’s Legal Guide to Production Contracts

Neil D. HamiltonEllis and Nelle Levitt Distinguished Professor of Law Director, Agricultural Law Center, Drake University Law School

Since its publication in 1995, the Farmer’s Legal Guide to Production Contracts has been a leading resource for producers, attorneys and others interested in the legal issues involved with production contracts. The book addresses typical elements and legal terms used, provides a primer on contract law and UCC provisions, walks the reader through typical clauses present in contracts, and discusses issues of contract performance and methods for resolving disputes. Separate chapters discuss the special issues inherent in grain, livestock, and vegetable production contracts and outline state and federal legislation on production contracts. Please note that the information presently included is current only to the original date of publication. Download this book. Originally published in print form January, 1995; digitized edition posted July 13, 2010

Aquaculture and the Lacey Act — Research Article

Elizabeth R. RumleyStaff Attorney National Agricultural Law Center

Aquacultural producers operate under many different levels of regulation- local, state and federal. One federal statute of particular importance to those producers who engage in interstate commerce is the Lacey Act. Under the provisions of the Lacey Act, violators of state wildlife laws may be prosecuted in federal court. Prosecution, including significant penalties and jail time, may occur even if the violation was inadvertent and unintentional. This article discusses Lacey Act history and provisions as well as its penalties and enforcement mechanisms. Further, it includes several hypothetical scenarios that further explain the provisions of the law. Finally, it provides a few options for minimizing the risks that aquacultural producers must take in order to operate a nationwide business. Download this article. Download this article. Posted March 19, 2010.

Farm Transition Planning – PowerPoint Presentation

This presentation was given at the Arkansas Women in Agriculture Annual Conference on March 1, 2010. The focus of the presentation is aimed at preparing farmers to not just pass their assets on but to create a structured plan to transition the farming operation to the next generation. Topics include the transfer of management, the importance of open lines of communication among all interested parties, and the creation of a financially viable strategy to bring the next generation into the farming operation with the least amount of stress. Download this presentation. Posted March 10, 2010.

Since it was first published in 1993, the book written by former Center director John Copeland and law professor J.W. Looney, titled Handbook of Laws and Regulations Affecting Arkansas Farm Employers and Employees, has been a frequently requested Center publication in print form. It has now been digitized and is available here for downloading. The book is intended to provide a convenient reference to the major provisions of the state and federal laws and regulations which affect farm employers and employees, including the Immigration Reform and Control Act, OSHA, Fair Labor Standards Act and applicable tax laws. On the state level, it discusses civil rights, child labor and worker’s compensation statutes. It further discusses the rights and duties of both parties in an employer/employee relationship, and an employer’s common law responsibility for employee injuries. While this book is in the process of being updated, it is important to note that the information presently included is current only to the original date of publication. Download this book. Originally published in print form June 15, 1993; digitized edition posted January 13, 2010.

States’ Farm Animal Confinement Statutes

Elizabeth SpringsteenStaff Attorney National Agricultural Law Center

Whether through typical legislative channels or as a result of a ballot initiative, several states have enacted laws that are concerned with farm animal welfare. While the majority of these laws require that farm animals be given a certain amount of space, others reserve the right to make those rules either to the state legislature or to a board put into place to address those issues. As a result of the wide variety of statutes, the statutory language contained in each differs greatly. States’ Farm Animal Confinement Statutes provides the statutory text of each state’s laws, along with the date on which it becomes effective. The primary aim of this compilation is to provide the researcher with easy and free access to a state’s statutory language by simply clicking on the state’s image in the map below. Download this compilation. Posted: December 2, 2009

This is a presentation that was given to the annual conference of the American Agricultural Law Association on Sept 25, 2009. It discusses common themes in states’ right-to-farm statutes, including policy statements, definitions, limitations, prohibitions on local governmental action, and the awarding of attorney fees and costs; while providing a special emphasis on the statutes of Oklahoma and Arkansas. It further explains the corporate farming laws that are in effect in several states, and addresses the court challenges to those laws. Download this presentation. Posted: October 6, 2009

Confidentiality and Liability Under the National Animal Identification System – PowerPoint Presentation

This is a presentation that was given to the National Conference on Animal Identification, sponsored by the National Institute for Animal Agriculture on August 26, 2009. It explains potential confidentiality and liability problems and solutions associated with participation in the animal identification program and discusses the cases that have been brought challenging different aspects of the program. Download this presentation. Posted: September 3, 2009

The Clean Water Authority Restoration Act: A Primer of Background Material

L. Paul GoeringerResearch Associate and

Rusty W. RumleyStaff Attorney National Agricultural Law Center

The Senate Committee on the Environment and Public Works approved the Clean Water Restoration Act (S. 787) (CRWA), proposed legislation will amend the Clean Water Act’s (CWA) jurisdiction. The proposal would replace the term “navigable waters” with “waters of the United States.” Under the CWRA, the CWA would now cover not only interstate waters but, for the first time, intrastate waters. This proposal could have major implications for the agricultural sector since it would augment the current jurisdictional scope of the CWA. This article is a reference resource designed to provide a basic background on the current legislative proposal and is not an exhaustive treatment of the subject. The article provides language for the previous bills introduced, the current language, statements made by supporters of the legislation, relevant articles written on the subject, and references to blogs and blog postings. Download this article. Posted: August 26, 2009

Since first published in 1998, former Center director John Copeland’s book, Recreational Access to Private Lands: Liability Problems and Solutions, has been a frequently requested Center publication in print form. It has now been digitized and is available here for downloading. The book addresses the duty of care owed by landowners who allow individuals to enter their lands along with other liability issues that may arise and the recreational use statutes that have been enacted to limit landowner liability. It further discusses insurance policies that may be purchased to protect against liability, and common exclusions and limitations on those policies. Finally, the appendices contain summaries of each states’ recreational use statute, along with some sample contracts and a listing of associations, brokers and general agents with information on recreational use policies. While this book is in the process of being updated, it is important to note that the information presently included is current only to the original date of publication. Download this book. Originally published in print form August, 1998; digitized edition posted August 4, 2009

Nation-Specific Risk Tolerance in the WTO: US-Continued Suspension of Obligations in the EC-Hormones Dispute

Alison PeckAssociate Professor of Law West Virginia University College of Law

When WTO member states seek to restrict imports on the grounds of protecting public health and safety, those restrictions must be justified under the provisions of the Agreement on the Application of Sanitary and Phytosanitary Measures, one of the agreements that make up the WTO system. Recently, the WTO’s dispute resolution arm considered attempts to justify restrictions on hormone-treated beef and on biotech products. In doing so, the WTO announced a standard that permits greater individuality of SPS measures among WTO members, while also ensuring a rigorous scientific review of even the most nation-specific solutions. This article describes the SPS Agreement, discusses the important cases, and explains the decision, standard and practical effects of the ruling. Download this article. Posted: August 3, 2009

States’ Right-To-Farm Statutes

Elizabeth SpringsteemStaff Attorney National Agricultural Law Center

All fifty states have enacted right-to-farm laws that seek to protect qualifying farmers and ranchers from nuisance lawsuits filed by individuals who move into a rural area where normal farming operations exist, and who later use nuisance actions to attempt to stop those ongoing operations. While the overall statutory schemes might be similar, each state has noticeably different content in the specific details of the laws. States’ Right-to-Farm Statutes provides the statutory text of each state’s laws, along with the date of its possible expiration. The primary aim of this compilation is to provide the researcher with easy and free access to a state’s statutory language by simply clicking on the state’s image in the map provided. Access to the state legislative site where the official language of the statute is maintained is also provided. Download this compilation. Posted: June 5, 2009

State and Federal Climate Change Statutes

L. Paul GoeringerResearch Associate National Agricultural Law Center

Global climate change is an area many state governments and the federal government are working towards combating. Currently thirty-seven states and the federal government have specific statutes to monitor and counter the effects of global climate change. These statutes range from greenhouse gas monitoring to the creation of regional carbon markets to carbon sequestration programs. This compilation is provided as a researcher-friendly resource guide for examining how states and federal government are combating global climate change. Download this compilation. Posted: May 14, 2009

Agricultural Contracts and the Leasing of Land – PowerPoint Presentation

Rusty RumleyStaff Attorney National Agricultural Law Center

This presentation was given on March 10, 2009 to the Arkansas Women in Agriculture Annual Conference and introduces contracts and leases from a basic law perspective, as well as an agriculture-specific viewpoint, with special attention given to issues that should be considered when drafting a contract or lease to prevent future problems. Download this presentation. Posted: May 13, 2009

This is a presentation that was given to the Arkansas Women in Agriculture Annual Conference on March 10, 2009 and introduces agricultural employer liability for actions that employees commit, as well as outlining the laws that employers are responsible for following, including the Fair Labor Standards Act, the Migrant and Seasonal Workers Protection Act, the Immigration Reform and Control Act, OSHA, and tax (IRS) responsibilities. Tips to help employers of agricultural labor reduce liability are also presented. Download this presentation. Posted: May 13, 2009

This February 21, 2009 presentation was given to participants in Arkansas’ Annie’s Project, a multi-state educational program designed to empower farm women to be better business partners through networks. Risk management issues that producers should consider, as well as potential solutions to many of these issues are introduced, with special attention given to negligence and premise liability, the use of business organizations as protection for assets, and issues involved in forming and enforcing contracts. Download this presentation. Posted: May 13, 2009

This presentation was given on February 10, 2009 to participants in the “Nature of Agritourism” conference and introduces risk management issues that individuals involved or interested in agritourism should consider. Special attention is given to negligence and premise liability, the use of business organizations as protection for assets, and Arkansas’ recreational use statute. Download this presentation. Posted: May 13, 2009

This presentation was given on April 23, 2009 as a guest lecture to undergraduate students enrolled in the Agricultural Law course offered by the University of Arkansas Dale Bumpers College of Agricultural, Food and Life Sciences. Environmental laws that are important to individuals involved in agriculture are introduced and briefly outlined, including Clean Water Act, Clean Air Act, FIFRA, Endangered Species Act and CERCLA, as well as several conservation programs. Download this presentation. Posted: May 13, 2009

States’ Biofuels Statutory Citations

Shannon MirusStaff Attorney and

Paul GoeringerResearch Associate National Agricultural Law Center

Each state in the United States has enacted statutes relating to biofuels. These statutes vary from tax incentives for biofuel production to labeling of biofuel for resale to the very definition of a biofuel. This compilation of state statutory citations focuses predominantly on biofuels laws in effect January 1, 1970 through December 31, 2007. In some instances, regulations have been included in the compilation due to their significance. This compilation is intended to serve as a researcher-friendly inventory of state laws by providing the formal title of relevant legislation, the standard legal citation for each statute and a brief description of the law. Some statutes and regulation listed do not specifically relate to biofuels but are included because of their complementary relationship to the evolution of biofuels law in the state. Download this article.Posted: April 28, 2009.

Biofuels Statutory Citations: United States Federal Laws

Shannon MirusStaff Attorney National Agricultural Law Center

This compilation of federal statutory citations focuses predominantly on biofuels laws in effect January 1, 1970 through December 31, 2007. In some instances, regulations have been included in the compilation due to their significance. This compilation is intended to serve as a researcher-friendly inventory of federal laws by providing the formal title of relevant legislation, the standard legal citation for each statute and a brief description of the law. Some statutes and regulations listed, such as the Trans-Alaska Pipeline Authorization Act, do not specifically relate to biofuels but are included because of their complementary relationship to the evolution of biofuels law in the U.S. Download this article.Posted: April 28, 2009.

European Union Food Law Update – IV

This European Union Food Law Update addresses significant changes in European Union (EU) food law that occurred between 2006 and early 2008. The update is different from previous ones, as it is organized by the subject areas addressed by the developments. The published regulations, proposals, cases, and other relevant news are thus incorporated under their corresponding topic headings. Download this article.Posted: April 9, 2009.

State Listings: Water Law Offices

This publication provides a state-by-state listing of the agencies responsible for water resources and environmental quality. Click on the hyperlinked agency name to be transferred to the appropriate agency site. Download this article.Posted: March 25, 2009.

Business Organizations Forms and Filling Information

Rusty RumleyResearch Associates National Agricultural Law Center

This publication provides a state-by-state listing of links to information necessary to file and/or create a business organization, along with the forms necessary to do so. If an online filing system is available, a link has been provided to it; if online filing is not available, the state will often provide downloadable forms. Download this article.Posted: March 10, 2009.

U.C.C. Forms and Filling Information

Elizabeth SpringsteenStaff Attorney National Agricultural Law Center

This publication provides a state-by-state listing of links to information necessary to file a UCC filing statement and to search the filings, along with the forms necessary to do so. If an online filing system is available, a link has been provided to it. Download this article.Posted: March 5, 2009.

Updated Statutory Agricultural Lien Charts

Elizabeth SpringsteenStaff Attorney and

Jennifer FiserResearch Associate National Agricultural Law Center

State statutory liens on agricultural products, equipment and production inputs are nonconsensual interests. The liens arise by operation of law, without the consent of the lien debtor, when the specific requirements of the statutes creating the lien are met. These liens may be scattered throughout a state’s code. Moreover, statutory provisions as to filing and priority of these liens may vary greatly among the states, and even within a single state. These Statutory Agricultural Lien Charts, originally published in 1993 and thoroughly reviewed and updated in 2009, compile and tabulate the main provisions of statutory agricultural liens in all fifty states. Download this article.Posted: March 4, 2009.

States’ Alternative Dispute Resolution (ADR) Statutes

Rusty W. RumleyResearch Associate National Agricultural Law Center

All fifty states have enacted statutes and administrative code provisions that create an alternative to traditional litigation. While many states have adopted some version of the Uniform Arbitration Act, the Revised Uniform Arbitration Act, or the Uniform Mediation Act, there are also many laws and regulations that create or mandate various forms of dispute resolution unique or particular to the specific state in which it was enacted. This publication provides the statutory text of each state’s ADR statutes and administrative code provisions, along with the date to which it is current. Download this article.Posted: March 4, 2009.

Secured Lending in the Produce Industry: What Every Bank Should Know

Jason R. KlinowskiSenior Associate Keaton & Associates, P.C.

One of the most misunderstood and hotly contested areas of litigation under the Perishable Agricultural Commodities Act (the “PACA”) involves balancing the rights of a secured lender against an unpaid PACA trust beneficiary. A significant contributing factor to the misunderstandings appurtenant to such litigation is the shortage of controlling case law. In an effort to guide litigants through such a dispute, this article provides an explanation of the PACA trust and its limits. Further, this article will introduce and analyze the key decisions addressing the rights of secured lenders and unpaid PACA trust beneficiaries. Download this article.Posted: January 23, 2009.

International Legal Issues Concerning Animal Cloning and Nanotechnology — More of the Same or Are “The Times They Are A-Changin'”?

Michael T. RobertsAttorney at Law

In the global food system, emerging technologies such as use of growth-promotion hormones for cattle, genetic modification for plants and animals and, in more recent times, animal cloning and nanotechnology spark methods of production that are both novel and engender controversy. These technologies spawn debate over legal, ethical, social, moral, and religious issues. The divergent responses to these issues that sharply divide the worlds trading partners have mushroomed into widely-followed, protracted disputes at the World Trade Organization (WTO). This article outlines the international law framework that will deal with these issues and will explain the factual and legal backdrop in the two food-production cases before the WTO that have created sharp divisions between the United States and Europe and agitated the world food community for years: EC Measures Concerning Meat and Meat Products (Hormone Beef) and European Communities-Measures Affecting the Approval and Marketing of Biotech Products (Biotech Products). This article also briefly summarizes the emerging technologies used in the production of food product, animal cloning and nanotechnology, examines the developing national regulatory responses in the United States and Europe, and poses twenty issues that help frame the debate over these emerging technologies. Download this article.Posted: December 4, 2008.

State-Level Catfish Labeling Laws

Amid concerns over the viability of the domestic catfish industry and increasing importation of Vietnamese products labeled as “catfish,” Congress added language to the 2002 Farm Bill (Farm Security and Rural Investment Act of 2002) requiring retail-level country-of-origin-labeling (COOL) for seafood, including catfish. However, the issue has also been regulated on the state level as well. Currently, six states- Tennessee, Louisiana, Arkansas, Mississippi, Alabama and Kansas- have labeling requirements for the sale of catfish. The purpose of this paper is to compare and contrast the provisions and requirements of the state statutes. Download this article.Posted: October 1, 2008.

In the 2007 decision Geertson Seed Farms v. Johanns, a district court held that the U.S. Department of Agricultures Animal and Plant Health Inspection Service violated the National Environmental Policy Act by deregulating genetically engineered alfalfa without performing an environmental impact assessment. This article reviews the Geertson decision and considers its actual and potential impact on the legal landscape related to plant biotechnology. After a summary of the decision, it briefly reviews the landscape of biotech regulation, liability rules, and coexistence strategies. Download this article.Posted: September 22, 2008.

Guide to Compliance with the Japanese Positive List

Deanna Fortna JonesSenior Attorney Archer Daniels Midland Company

Effective May 29, 2006, the Japanese authorities implemented new regulations for maximum residue limits (MRLs) of approximately 800 agricultural chemicals in foods imported into Japan.. These new MRLs, together with approximately 10,000 existing MRLS already established by the Japanese government, are known as the positive list,” compliance with which is necessary for importing food and food components into Japan. This practical article outlines steps that companies should take and concerns they should address to minimize the risk of economic harm resulting from a potential delay or ban. Download this article.Posted: September 22, 2008.

States’ Agritourism Statutes

Shannon MirusStaff Attorney National Agricultural Law Center

Currently, nineteen states in the United States have enacted statutes that address agritourism. These statutes vary from liability protections for agritourism operators to tax credits to zoning requirements. Familiarity with these statutes is essential to anyone who engages in agritourism. States’ Agritourism Statutes provides the statutory text of each of the states’ agritourism statutes. It is important to note that there are other statutes that impact agritourism operators in each state; however, the statutes included below are the statutes that specifically mention and directly address agritourism. Several states have pending legislation; these new statutes will be added to the compilation as they are passed. The primary aim of this compilation is to provide the researcher with easy and free access to a state’s statutory language by simply clicking on the state’s image in the map below. Download this article.Posted: August 8, 2008.

The Renewable Fuels Standard Provisions Under the Clean Air Act: Overview and Recent Developments

Eric FoyResearch Associate National Agricultural Law Center

Pursuant to the Federal Clean Air Act (CAA), as amended by Section 1501 of the Energy Policy Act of 2005, Congress required the Environmental Protection Agency to promulgate regulations implementing a renewable fuels program. These regulations are commonly referred to as the Renewable Fuels Standards (RFS). The RFS outline the total volume of renewable fuel that must be blended each year as part of the domestic fuel supply. In addition, EPA allows states to petition for waiver of the RFS in the event of severe economic or environmental harm, or inadequate domestic supply of renewable fuel. This article discusses the RFS and addresses the recent petition for waiver of the RFS submitted by the state of Texas. Download this article.Posted: July 8, 2008.

Animal Cruelty Statutes – A State-By-State Analysis

This article is a companion publication to States’ Animal Cruelty Statutes and presents a state-by-state survey of classifications and penalties for acts of animal cruelty. Because each state differs in its definition of “cruelty,” it is not meant to characterize specific acts as belonging to a certain category and thus meriting a specific punishment in the listed state. Instead, it is a reflection of how the individual states criminalize and punish different levels of animal-abusive criminal behavior. Download this article.Posted: May 2, 2008.

States’ Animal Cruelty Statutes

Each state in the United States has enacted statutes to punish individuals who engage in cruelty to animals. While there are many similar characteristics, the actual codified provisions vary drastically from state to state. Familiarity with these statutes is essential to anyone who interacts with animals–from recreational hunting to raising livestock, from owning a pet to living alongside wild animals. States’ Animal Cruelty Statutes provides the statutory text of each state’s animal cruelty statutes, along with the date of its possible expiration. The primary aim of this compilation is to provide the researcher with easy and free access to a state’s statutory language by simply clicking on the state’s image in the map provided. Download this article.Posted: May 2, 2008.

States’ Recreational Use Statutes

All 50 states in the United States have enacted statutes that confer some degree of liability protection to landowners who allow the general public to enter upon or make use of their land for recreational purposes. Commonly referred to as “recreational use statutes,” these laws promote the public policy of encouraging landowners to open their lands so the public may access a wider range of recreational activities. These statutes are of particular importance to agricultural and rural owners of land. This article provides the statutory text of each state’s recreational use statute, along with the date of its possible expiration. The primary aim of this compilation is to provide the researcher with easy and free access to a state’s statutory language by simply clicking on the state’s image on the map provided. Download this article.Posted: February 8, 2008.

Introduction to Food Law in the People’s Republic of China

Michael T. RobertsAttorney at Law

The adequacy of the food regulation system in the People’s Republic of China (PRC) has captured attention worldwide following numerous high profile cases of food safety problems in Chinese exports. Notwithstanding the dearth of primary and interpretative sources in English, this article seeks to facilitate an understanding of the regulation of food safety in China. This article begins with a brief narrative of recent food safety issues in China and an overview of the legal system in China then introduces food law in China, with a particular focus on the regulation of food safety. This analysis covers the administrative organization of government bodies that have authority over food safety and the substantive regulatory provisions that govern these government bodies and the safety of food product. Finally, the most recent developments of food law in China are briefly described. Download this article.Posted: November 16, 2007

European Union Food Law Update – III

The purpose of this update is to present the main events that have taken place in the food law sector in the European Union (E.U.) in the second half of 2005. This update concentrates on fundamental topics and focuses on food and thus excludes from its scope questions regarding the management of agricultural products (Common Agricultural Policy, or CAP). The update is divided into four main sections: published regulations, pending draft regulations, cases, and other relevant news. Download this articlePosted: November 16, 2007

United States Food Law Update – III

This update summarizes significant changes and developments in food law over the second half of 2000 and provides a starting point for scholars, practitioners, food scientists, and policymakers to better understand the shaping of food law in modern society. Tracing the development of food law through these updates also builds an important historical context for the overall development of food law. New developments in state law, while certainly important and deserving of attention, are beyond the scope of this update. Download this articlePosted: November 16, 2007

Role of Regulation in Minimizing Terrorist Threats Against the Food Supply: Information, Incentives, and Penalties

Michael T. RobertsAttorney at Law

Measuring the effectiveness of the government’s response to the threat of food terrorism is not easy. Much has been written about the role of government regulation in reducing health risks. Rather than devise a regulatory construct specifically to address the threat of food terrorism, this article evaluates the government’s efforts, within the existing regulatory construct, to minimize the risk of food terrorism by focusing on the effectiveness of the government’s use of three regulatory tools: information, incentives, and penalties. This article concludes that there are inherent limitations and weaknesses of the food regulatory system. Download this article.Posted: August 2, 2007

Approaching Liability with Animal Identification

Eric PendergrassAttorney at Law

This article addresses prominent legal liability issues associated with the development and implementation of the National Animal Identification System (NAIS). In particular, the article addresses legal issues associated with warranties theory and several states’ approaches to limiting producers’ potential liability under the warranties theory. The article also focuses on strict liability and negligence theories in the NAIS context. Download this article.Posted: July 12, 2007

Terence J. CentnerProfessor, College of Agricultural and Environmental Sciences University of Georgia

State anti-nuisance laws, known as right-to-farm laws, burden neighboring property owners with nuisances. The purpose of the laws is to protect existing investments by offering an affirmative defense. Activities that are not a nuisance when commenced cannot become a nuisance due to changes in land uses by neighbors. While most state laws involve a lawful exercise of the state’s police powers, a right-to-farm law may set forth protection against nuisances that is so great that it operates to effect a regulatory taking. Judicial rulings that two Iowa right-to-farm laws went too far in reducing neighbors’ constitutionally protected rights augur an opportunity to rethink right-to-farm laws. Rather than relying upon a marketplace economy to protect businesses, a law based upon an economy of nature may be drafted to protect farmland and other natural resources. Download this article.Posted: May 23, 2007

A Comparison of International Animal Identification Programs

Eric PendergrassGraduate Assistant National Agricultural Law Center

As with many international issues that are addressed by the countries individually instead of on a global basis, the animal identification programs and their application varies widely between nations. This article discusses the programs that have been implemented by certain countries. Within this discussion, issues are addressed when information was available, including a brief history of the program, its stated purpose, how the program addresses producer liability and confidentiality, and who bears the cost burden of the program’s implementation. Download this article. Posted: April 23, 2007

Terence J. CentnerProfessor of Agriculture and Applied Economics University of Georgia

The Clean Water Act of 1972 sought to restore and maintain the chemical, physical, and biological integrity of our nation’s waters. Central to achieving the Act’s goals was a permitting system prohibiting discharges of pollutants from point sources into navigable waters except as authorized by a National Pollution Discharge Elimination System (NPDES) permit. Point sources are defined to include discernable, confined, and discrete conveyances including concentrated animal feeding operations (CAFOs). In the wake of an April 14, 2003 CAFO Rule issued by the Environmental Protection Agency and litigation over that rule in Waterkeeper Alliance, Inc. v. Environmental Protection Agency, there exists some uncertainty regarding the NPDES requirements for CAFOs. This article discusses these requirements and clarifies what the NPDES permit requirements are for CAFOs. Download this article. Posted: March 22, 2007

Varying State Approaches to Confidentiality with Premises and Animal Identification Systems

Eric PendergrassGraduate Assistant National Agricultural Law Center

A major issue surrounding the National Animal Identification System is whether the information gathered under the system will be confidential. This article explores how different states have addressed this issue in state law as categorized in three different approaches: (1) Non-acting; (2) Reliance on current law; and (3) Passage of specific exemptions. Download this article. Posted: January 4, 2007

This publication provides a table of state statutory citations for state laws that involve the National Animal Identification System. In Particular, the table includes cites regarding premises identification, animal identification, and confidentiality. Download this article. Posted: January 4, 2007

Developments in Administrative Law and Regulatory Practice, 2005-2006 — Agriculture

Harrison M. PittmanResearch Assistant Professor of Law and Co-Director National Agricultural Law Center

This article examines several important agriculture-related judicial, administrative, and legislative developments that occurred during 2005 and 2006. In particular, the article discusses three important decisions issued by the Ninth Circuit, including Ranchers Cattlemen Action Legal Fund United Stockgrowers of America v. United States, which was initially triggered by the May 20, 2003 discovery of a cow in Alberta, Canada infected with Bovine Spongiform Encephalopathy (BSE). The article also examines two Federal Circuit decisions that involved challenges associated with statutory amendments to the peanut quota program under the Farm Security and Rural Investment Act of 2002, commonly referred to as the 2002 Farm Bill. The article also highlights several important administrative developments, including regulatory amendments to the National Organic Program that occurred in response to the First Circuit’s decision in Harvey v. Veneman and the issuance by the Environmental Protection Agency of a proposed rule that involves concentrated animal feeding operations. Download this articlePosted: November 15, 2006

Animal Identification and the Next Farm Bill

Doug O’BrienResearch Assistant Professor and Interim Co-Director National Agricultural Law Center, University of Arkansas School of Law Staff Attorney, Drake University Agricultural Law Center

A somewhat nontraditional area that Congress may address in the next Farm Bill is animal identification. The effort to create a national animal identification program received a considerable push in late 2003 after a cow in Washington State was diagnosed with bovine spongiform encephalitis. Since that time, USDA, state animal health officials, and private industry have begun to implement the National Animal Identification System (NAIS). This article looks first at how the NAIS is designed and then at some federal and state laws that affect the NAIS. It then examines federal legislation that has been proposed to amend the NAIS and concludes by highlighting some of the issues that might arise during the farm bill debate. Download this articlePosted: October 26, 2006

Bankruptcy Reform and Family Farmers: Correcting the Disposable Income Problem

Susan A. SchneiderAssistant Professor of Law and Director Graduate Program in Agricultural Law University of Arkansas School of Law

This article focuses on the last amendment to the Bankruptcy Abuse Prevention and Consumer Protection Act—the assessment of disposable income. It is an amendment that has not been widely reported, nor does it appear to have been the subject of significant congressional debate. It is set forth in one very short section of the bill, but it reverses over a decade of misinterpretation of the plain language of the original Chapter 12 disposable income requirement. It is a significant change that promises to enhance the likelihood of successful family farm reorganizations throughout the country. Download this articlePosted: September 19, 2006

Summary of the WTO Interim Report in EC-Biotech

Alison PeckGraduate Assistant National Agricultural Law Center

This article summarizes the Interim Report of the Dispute Settlement Panel of the World Trade Organization (“WTO”) in the matter of Europe Communities – Measures Affecting the Approval and Marketing of Biotech Products (“EC – Biotech”). The Report was released confidentially to the parties on February 7, 2006, but Friends of the Earth-Europe published a leaked copy on its website. According to news reports, the Appellate Body adopted the Report as its final ruling on May 10, 2006. Download this articlePosted: September 19, 2006

Biofuels: Policy and Business Organization Issues

Doug O’BrienResearch Assistant Professor of Law, Senior Staff Attorney University of Arkansas National Agricultural Law Center Staff Attorney, Drake University Agricultural Law Center

The burgeoning renewable fuels industry has the potential to radically reshape production agriculture, and farmers have an important role to play in this movement. Whether as producers of renewable feedstock, investors in renewable fuel plants or consumers of the renewable fuels, farmers have a direct interest in how the sector develops. The renewable fuel boom has implications across the agricultural sector – from the land use choices such as the possibility that Conservation Reserve Program acres will be drawn into use for renewable energy to the livestock sector that will need to compete for feedstuffs. The focus of this article is on some of the direct policy and legal issues advisors should think about in considering how to advise those who want to participate in the renewable energy industry. A snapshot of the sector will be given, followed by a description of some of the most significant federal renewable energy policies. The article will then focus on direct legal issues, in particular some business organization issues. Download this articlePosted: September 6, 2006

Planting the Seeds for a New Industry in Arkansas: Agritourism

Harrison M. PittmanResearch Assistant Professor of Law and Staff Attorney National Agricultural Law Center University of Arkansas School of Law

Agritourism operations exist in every state, and in many states, organizations, state officials, citizens, and others have undertaken some type of effort to enhance agritourism. Several states have undertaken some type of agritourism promotion effort, including Alabama, Mississippi, Missouri, Utah, North Carolina, Kansas, Oklahoma, and New Mexico. The types of efforts and the degree to which they are undertaken in these and other states vary substantially. A small but growing number of states– including Tennessee, Kentucky, Indiana, Kansas, and Vermont– have undertaken comprehensive efforts to not only promote agritourism but to recognize agritourism as an industry that can provide significant economic benefits to producers, communities, and states. Arkansas and many other states have not yet undertaken a similar effort, though these states possess the human, land, government, organizational, and academic resources to do so. This article provides a context from which producers, state officials, private organizations, citizens, and other relevant stakeholders in Arkansas and other states can initiate a discussion regarding the potential development of a program to promote an agritourism industry. Download this articlePosted: August 10, 2006

2005 Environmental Law Update

Theodore A. FeitshansExtension Specialist and Lecturer North Carolina State University

This article examines several significant developments from 2005 regarding the application of environmental laws to agricultural production and processing. The article discusses, among other items, air quality concerns related to animal feeding operations, water use issues, and recent developments under the Clean Water Act related to National Pollution Discharge Elimination System permits. In addition, the article examines developments regarding wetlands protection, eminent domain and takings, concentrated animal feeding operations, and the application of pesticides to surface waters Download this articlePosted: July 17, 2006

2005 Commercial Law Update

Keith G. MeyerThe Hampton Professor of Law University of Kansas

As of July 1, 2001, all fifty states adopted Revised Article 9 of the Uniform Commercial Code, the first major revision of Article 9 since 1972. In most states, Revised Article 9 became effective on July 1, 2001, ushering in a host of changes to the areas of commercial and secured transactions law. For agriculture, these changes are especially important and present a wealth of pitfalls for even the experienced practitioner. This update provides a discussion of the changes brought by Revised Article 9 and the new law’s application to commercial and secured transactions in the agricultural context. Download this articlePosted: June 26, 2006

From the Farm to the Factory: An Overview of the American and European Approaches to Regulation of the Beef Industry

Crisaria S. HoustonVisiting Instructor, Thurgood Marshall School of Law Texas Southern University

The United States and Europe have the Herculean task of regulating cattle and beef production in each of their many states and countries, respectively, and many factors must be covered in their regulatory schemes. This article briefly describes the existing regulatory requirements under the U.S. and European systems and compares the two approaches. In comparing the two systems, attention is concentrated on the quality of legislative drafting, the likelihood of implementation, the adequacy of consumer protection, the voluntary or compulsory nature of the measures, and the requirement of records retention. Download this articlePosted: June 23, 2006

Is a Picture Worth More Than 1,000 Words? The Fourth Amendment and the FDA’s Authority to Take Photographs Under the Federal Food, Drug, and Cosmetic Act

Neal D. FortinAttorney at Law Okemos, Michigan

The Food and Drug Administration (FDA) touches the lives of nearly every American every day. Yearly, the FDA regulates over $1 trillion worth of products, which accounts for nearly twenty-five cents of every dollar spent by American consumers. Consequently, the FDA’s regulatory authority provides a rich arena for legal commentary, one of which is the FDA’s authority to take photographs under the Federal Food, Drug, and Cosmetic Act, long an area of controversy in the food and drug field. Two currents roil beneath the surface of this issue: the Fourth Amendment right against unreasonable searches and the scope of the FDA authority to inspect under FDCA. Yet, a recent literature search revealed a solitary law review article addressing the issue. To fill the gap, this article analyzes the FDA’s authority to take photographs during regulatory inspections. It reviews the FDA’s regulatory authority to conduct establishment inspections and discusses the FDA’s administrative policy and the case law on the scope of the FDA’s authority to take photographs during administrative inspections. In addition, this article argues that the lack of express authority to take photographs does not equate with the lack of legal clarity. Download this articlePosted: June 23, 2006

European Union Food Law Update – II

The purpose of this update is to present the main events that have taken place in the food law sector in the European Union (E.U.). This update concentrates on fundamental topics and focuses on food and thus excludes from its scope questions regarding the management of agricultural products (Common Agricultural Policy, or CAP). The update is divided into four main sections: published regulations, pending draft regulations, cases, and other relevant news. Download this articlePosted: June 23, 2006

United States Food Law Update – II

Michael T. RobertsResearch Professor of Law and Director, National Agricultural Law Center University of Arkansas School of Law

This update summarizes significant changes and developments in food law over the first half of 2000 and provides a starting point for scholars, practitioners, food scientists, and policymakers to better understand the shaping of food law in modern society. Tracing the development of food law through these updates also builds an important historical context for the overall development of food law. New developments in state law, while certainly important and deserving of attention, are beyond the scope of this update. Download this articlePosted: June 23, 2006

Who Gets the Check: Determining When Federal Farm Program Payments Are Property of the Estate

Susan A. SchneiderAssociate Professor of Law Director, Graduate Program in Agricultural Law University of Arkansas

This article addresses the sometimes arcane intersection of farm programs and bankruptcy by confronting the fundamental question: When is the federal farm program payment property of the bankruptcy estate? The article begins by identifying some of the most important characteristics of the wide array of federal farm programs necessary to form the framework for the legal analysis. It then addresses the property of the estate inquiry, meshing existing precedent with commentary and specifically examining the recent circuit court options on this issue in the context of disaster relief. Based on this analysis, the article concludes with comments regarding future decision making and new farm programs Download this articlePosted: June 5, 2006

State Regulation of Production Contracts

Alison PeckNational Agricultural Law Center Graduate Assistant

Increasingly, agricultural production in the U.S. occurs through production contracts – agreements through which producers (or “growers”) and contractors (typically agricultural commodity processors) detail an arrangement for raising agricultural commodities. These agreements, like most commercial contracts, are subject to state regulation. As agricultural production contracts have become more common, several states have enacted legislation directly regulating production contracts and the process of creating them. This article collects and briefly analyzes existing state laws– from Arkansas, Georgia, Illinois, Iowa, Kansas, Minnesota, and Wisconsin – that directly regulate production contracts. Download this articlePosted: May 25, 2006

Are You a Debt Relief Agency? You Might Be Surprised and You Should Be Concerned

Susan A. SchneiderAssociate Professor and Director, Graduate Program in Agricultural Law University of Arkansas School of Law

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 was signed into law on April 20, 2005 as Public Law No.109-8. Most provisions of the bill were not immediately effective but rather took effect with respect to cases filed on or after October 17, 2005. This massive new act makes profound changes in bankruptcy law, some of which are controversial. The requirements regarding “debt relief agencies” provide an example of a particularly controversial change that has generated concern among the bar. The definition of this term by the new act is expansive, and if a person or entity falls within the term, violating the act’s requirements can result in serious consequences. This article provides an overview of the definition of a debt relief agency and the requirements now in place for such entities. It also discusses challenges to the requirements that have been brought in the courts. Download this articlePosted: May 25, 2006

World Trade Organization and the Commodity Title of the Next Farm Bill: A Practitioner’s View

Doug O’BrienSenior Staff Attorney National Agricultural Law Center and Drake Agricultural Law Center

Traditionally, the major factors affecting the changes in a farm bill are the state of the farm economy, the condition of the federal budget, and who is in power in Congress at the time of the bill’s consideration. To be sure, all of these factors will again play a major role in the next farm bill. But an influence that has many times provided background context to farm bill deliberations is now up front and squarely facing policy makers: current and future trade policy. The impact of the Brazil Cotton Case has shifted current trade policy in a way that may force domestic policy to change. Further, the debate surrounding the next farm bill could very well coincide with the negotiations for the next major multi-lateral agricultural trade agreement, known as the World Trade Organization Doha Round. The timing both highlights and heightens the new significance that United States’ trade obligations have on domestic policy. This article examines how this new factor might influence Congress’ farm bill debate. Download this articlePosted: April 26, 2006

Federal Regulation of Organic Food: A Research Guide for Legal Practitioners and Food Industry Professionals

Stephanie JillianCovington and Burling Washington, DC

This guide explores methods and resources for researching the federal regulation of organic food following the passage of the Organic Foods Production Act of 1990. This guide focuses on the current state of federal law and not on the pre-1990 history of organic food regulation, or on state regulation. There are countless resources available, including government documents, online electronic files, books, trade journals, government and non-government sponsored websites, agricultural search engines, and commercial databases. This guide examines these and other resources, providing the reader with a clear roadmap for approaching research on this topic. Posted January 25, 2006Download articleDownload table of contents

The Farmer’s Legal Guide to Producer Marketing Associations

Doug O’Brien, Staff Attorney National Agricultural Law Center and Drake University Agricultural Law Center

Managing Carbon in a World Economy: The Role of American Agriculture

Kelly Connelly GarryUniversity of South Dakota School of Law

Climatic change is one of the most challenging environmental concerns faced by the world. Carbon sequestration offers an optimistic approach to curb the effects of climatic change until a more permanent solution is discovered and implemented. Presently, carbon sequestration is the most practical response to global warming. It has been known for decades that carbon sequestration can assist in decreasing the amount of carbon dioxide in the atmosphere, but the difficulty lies with the incorporation of carbon sequestration into programs that will encourage sufficient participation to make it worthwhile. This article outlines the role American agriculture can play in managing carbon in a world economy. Download this articlePosted: November 12, 2005

Do European Union Non-Tariff Barriers Create Economic Nuisances in the United States?

Thomas P. RedickPrincipal, Global Environmental Ethics Council and

Michael J. AdrianAssociate, Gallop, Johnson & Neuman, Clayton, MO

On April 18, 2004, the European Union’s Directives on Traceability and Labeling went into effect, imposing in effect a “zero tolerance” standard for biotech crops that have not received regulatory approval from the E.U. The Directives will also lead to genetic testing of shipments of United States commodities exports. This article overviews the European Union’s complex regulatory policy regarding biotech crops, the United States’ reaction to the new laws, and reviews case law on “nationwide nuisance” class action lawsuits. This article also reviews the tools proposed for preventing liability and examines E.U. policies on biotech crops and human health in the United States, the E.U., and their trading partners. Download this articlePosted: August 26, 2005

An Introduction to Chapter 12 Bankruptcy: Restructuring the Family Farm

Susan A. SchneiderAssociate Professor and Director, Graduate Program in Agricultural Law University of Arkansas School of Law

Chapter 12 bankruptcy is a special section of the Bankruptcy Code that provides for the restructuring of the debts of a family farm or family fisherman’s business. It provides powerful tools to debtors, sometimes enabling them to reduce their debts or restructure their payments so that they can continue farming or fishing as their livelihood. Chapter 12 was first created in October 1986 and was recently made permanent by The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (the 2005 Bankruptcy Act). Chapter 12 has been an important tool for farmers in financial distress, both as a bankruptcy option and as a base line for negotiations outside of bankruptcy. This article provides an overview of Chapter 12 as amended by the 2005 Bankruptcy Act. Download this articlePosted: October 25, 2005

Bankruptcy Reform: Changes to Chapter 12 – Adjustment of Debts for a Family Farmer

Susan A. SchneiderAssociate Professor of Law Director, Graduate Program in Agricultural Law University of Arkansas School of Law

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 became law on April 20, 2005. While much of the new law is directed toward consumer bankruptcy reform, it also includes a number of important changes to Chapter 12 of the Bankruptcy Code. This article discusses these changes. Download this articlePosted: September 14, 2005

Revising Seed Purity Laws to Account for the Adventitious Presence of Genetically Modified Varieties: A First Step Towards Coexistence

A. Bryan EndresAssistant Professor of Agricultural Law University of Illinois

Adoption of genetically modified seed varieties in the United States, Canada, and South America continues to expand, with GM crops comprising almost 70 million hectares and over 93 percent of the total biotech cropland worldwide. As an increasing number of farmers plant GM varieties, the potential for adventitious mixture of genetically modified DNA with products produced via organic and conventional (non-GM) methods also increases. This article examines the critical role played by federal and state seed purity laws in the achievement of coexistence in the United States and the preservation of commodity agricultural exports to the European Union. It concludes that existing domestic seed laws should be revised to account for the widespread adoption of GM varieties. Download this articlePosted: Sept. 14, 2005

Liability of Federal Agencies for Failure to Abide by the Rural Development Act

Steve SheppardAssociate Professor of Law and Allen MazzantiJuris Doctor, 2005 University of Arkansas School of Law

The poorest areas of the United States are almost entirely among its rural counties. Despite some recovery of its economy in some sectors, many aspects of rural life in the United States continue to decline. The number of farmers has fallen. Even though some population has returned to rural areas after fifty years of decline, the number of children in rural areas continues to fall, leaving rural areas with a disproportionally high population of the aged. Moreover, the dominant form of federal assistance to rural areas, $15 billion in annual farm supports and agricultural subsidies, is under pressure from the federal budget as well as under attack in the World Trade Organization. It is apparent that a need for federal support of rural areas persists, and yet the expensive habit of direct payments to farmers is both increasingly difficult and, as it has perhaps always been, less efficient as a means of rural development than other approaches. There is an obvious need for a means for the federal government to encourage rural development, if possible, in a manner that both provides long-term stability for rural communities while at the same time requiring less from the federal budget. A tool to do exactly this has languished in the United States Code for thirty-five years: the Rural Development Act (RDA). This article first considers the structure of the RDA and the scope of its application to “rural areas.” It then considers agency attempts and failures to conform to it, as reported by the General Services Administration. Lastly, the article considers means for states and others whose interests are harmed by agencies that fail to conform to the RDA to enforce the Act under the Administrative Procedures Act. Download this articlePosted: Sept. 14, 2005

Bankruptcy Reform and Family Farmers

Susan A. SchneiderAssociate Professor, University of Arkansas School of Law Director, Graduate Program in Agricultural Law

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 passed the Senate on March 10; it passed the House of Representatives on April 11; and it was signed by the President on April 20, 2005, marking the conclusion of almost a decade of contentious debate. Most provisions of the bill will not be effective for six months from enactment. Much of the new law is directed toward consumer bankruptcy reform, and some of the most controversial aspects of it, e.g., means testing for Chapter 7 relief, have been reported widely in the media. The important aspects of the law that will directly affect farmers, however, have received little attention. The main provisions affecting farmers are summarized in this article. Download this articlePosted: August 30, 2005

European Union Food Law Update

The purpose of this update is to present the main events that have taken place each six months in the food law sector in the European Union. This presentation will cover June through December 2004, but is not exhaustive. This update will not include detailed discussions of regulations, such as authorizations of new additives for animal feed or registrations of new geographic names. Instead, it will concentrate on fundamental topics and focus on food, which excludes from our scope questions regarding the management of agricultural products. The update will be divided into four main sections: published regulations, pending draft regulations, cases, and other relevant news. Download this articlePosted: August 26, 2005

United States Food Law Update

Michael T. RobertsResearch Associate Professor of Law and Director, National Agricultural Law Center and Margie AlsbrookFounding Editor-in-Chief, Journal of Food Law & Policy

The one constancy about food law in the United States is change, especially in a rapidly-changing food industry. Innovations in food technology, shifts in popular culture and tastes, concerns of safety and nutrition, pressures from international markets, all contribute to the changing landscape of food law. These changes are reflected in new federal statutes, regulations, administrative decisions, and judicial decisions. This update summarizes significant changes and developments in food law over the last half of 2004 in order to provide a starting point for scholars, practitioners, scientists, and policy-makers determined to understand the shaping of food law in modern society. Download this articlePosted: August 26, 2005

Market Concentration, Horizontal Consolidation, and Vertical Integration in the Hog and Cattle Industries: Taking Stock of the Road Ahead

Harrison M. PittmanResearch Assistant Professor of Law National Agricultural Law Center

The level of market concentration in virtually every segment of the agricultural sector in the United States has increased significantly over the past several decades. The number of firms and actors within the sector, including producers, input suppliers, output processors, and food retailers, has decreased as their size has increased. The hog and cattle industries are two portions of the agricultural sector that have been the focus of recent litigation due to market concentration concerns brought about by horizontal consolidation and vertical integration. The Packers and Stockyards Act of 1921 (PSA) and anti-corporate farming laws, both of which have been the basis of recent judicial activity, are two legal mechanisms implicated in the debate over market concentration in the hog and cattle industries. This article reviews the status of the PSA and corporate farming laws in light of the decisions in London v. Fieldale Farms, Corp., Pickett v. Tyson Fresh Meats, Inc., South Dakota Farm Bureau, Inc. v. Hazeltine, and Smithfield Foods, Inc. v. Miller. The article also examines the historical development and current structure of the hog and cattle industries and presents a brief overview of the PSA and corporate farming laws. Download this articlePosted: August 14, 2005

Hedge to Arrive Contracts: Futures or Forwards

Although the Commodity Futures Modernization Act of 2000 (CFMA) reformulated the Commodity Exchange Act (CEA), Congress chose to preserve the distinctions between agricultural commodities and all others, leaving the pre-CFMA provisions largely intact. This means that the pre-CFMA statutes and case law interpreting them continue to apply with full force to transactions involving agricultural commodities, and the agricultural markets seem therefore to have escaped the statutory modernization brought by the CFMA to the financial derivatives markets. Since the middle 1990s, transactions involving Hedge to Arrive Contracts (HTAs) between producers and grain merchants have sparked controversy as well as litigation. The central question arising with respect to HTA transactions is whether they are futures contracts to which the CEA applies, or whether they are excluded from the CEA as forward contracts. This article addresses this question by examining the case law surrounding HTA contracts and the CFTC’s treatment of HTAs, focusing on the analysis used to categorize HTAs as futures or forward contracts. Download this articlePosted: April 21, 2005

Supreme Court Considers Preemption of State Law Claims Under the Federal Insecticide, Fungicide, and Rodenticide Act

Harrison M. PittmanStaff Attorney National Agricultural Law Center

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) regulates the use and distribution of pesticides through comprehensive labeling and registration requirements. FIFRA provides the federal government wide latitude to regulate pesticides but authorizes states to play a role as well. In particular, FIFRA provides that “[a] State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter.” It also provides that “[s]uch State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter. The issue arises as to whether state common law tort claims are preempted by FIFRA because the claims impose requirements “in addition to or different” from those imposed by the Environmental Protection Agency, the federal agency responsible for implementing FIFRA. This article discusses FIFRA, the evolution of courts’ views regarding FIFRA preemption of state law tort claims, and two recent federal circuit court decisions, one of which the United States Supreme Court has agreed to review. Download this articlePosted: April 19, 2005

Legal and Policy Considerations of Investor-Friendly Cooperatives

Doug O’BrienStaff Attorney National Agricultural Law Center and Drake Agricultural Law Center

Farmers and rural communities have looked to the cooperative model for over 150 years as an organizing principle for decision making, profit sharing, and education. As the economic environment has changed, coops have evolved in attempts to meet competition and fulfill their members’ needs. In recent years a new model has emerged that has become known as the Minnesota model. Minnesota authorized this new type of coop in 2003, with Wyoming and Tennessee adopting similar measures and about 12 other states considering legislation. This article examines some of the traditional cooperative principles and how state policy makers have manifested those principles by enacting laws allowing for the incorporation of cooperatives. It then discusses some of the evolving demands on cooperatives and how policy makers have responded, specifically with the enactment of the Minnesota statute that creates investment coops and the consideration of a uniform law that will create investment coops. Finally, the article examines how these new coops will be treated under certain federal statutes, such as the Capper-Volsted Act, the Securities Exchange Act, the Internal Revenue Code and the Farm Credit Act. Download this articlePosted: Jan. 27, 2005

Developments in Horizontal Consolidation and Vertical Integration

Doug O’BrienStaff Attorney National Agricultural Law Center and Drake Agricultural Law Center

The likely continued increase in agricultural consolidation and vertical integration, as well as a number of important decisions that will soon be handed down, ensure that the areas of antitrust and trade practice regulation will continue to be an important facet of agricultural policy. As it has in the past, the enforcement and interpretation of these laws will continue to play a crucial role in how the different agricultural sectors evolve. This article explores some of the recent developments, both in the industry and in the courts, that affect horizontal consolidation and vertical integration in agriculture. Download this articlePosted: Jan. 19, 2005

Farmers’ Guide to GMOs

For nearly a decade, US farmers have commercially grown genetically modified organisms, or GMOs. Whether farmers grow GMOs or conventional seeds or are certified organic, the use of GMOs in commercial agriculture will affect their operations. This guide sets out recent statistics on the commercial production of genetically modified crops, discusses the regulation of GMOs by three federal agencies, looks at the obligations and legal limitations farmers assume when they sign GMO contracts, analyzes farmers’ right to save seed in light of recent U.S. and Canadian cases, provides information on steps farmers should consider taking if they are accused of violating a seed patent, addresses issues of potential liability for farmers from GMO contamination, discusses some of the current international issues related to GMOs, and summarizes recent research on the cost and benefits of GMOs. Also included are a list of resources and a reproduction of the legal sections from Monsanto’s 2005 Technology Agreement. Download this articlePosted: Jan. 4, 2005

Anatomy of the Government’s Role in the Recall of Unsafe Food Products

Michael T. RobertsDirector The National AgLaw Center

The government does not have the authority to mandate a recall of unsafe food. Recalls of unsafe food products are voluntarily conducted by food companies and are monitored by either the Food and Drug Administration (FDA) or the United States Department of Agriculture (USDA) through its branch agency, the Food Safety and Inspection Service (FSIS). In a typical food recall, the recalling company and the government agency work together to evaluate the product and risk and to recover that product. This article describes the government’s role in this voluntary food recall system. This article first explains the need for an effective recall system to protect consumers from foodborne illnesses. Next, this article describes the unique dual-government agency responsibility for food recall, the basis for the “voluntary” food recall, and the government’s specific responsibilities and roles in the voluntary food recall system. Download this article.Posted: Nov. 22, 2004

Rabobank Offer to Purchase FCS of America

Doug O’BrienSenior Staff Attorney The National AgLaw Center

This article considers the legal facets of the Farm Credit Services of America resolution to terminate its status as a Farm Credit System Institution so that it could become a wholly owned subsidiary of Rabobank. Specifically, the article examines the possibility of approval of such a termination application by the Farm Credit Administration and the stockholders of Farm Credit Services of America. Download this article.Posted: Oct. 18, 2004

On October 2, 1998, Lee and Amy Till purchased a used vehicle from Instant Auto Finance in Kokomo, Indiana. Little did they know that the events of that day would evolve into legal battles before a bankruptcy court, a federal district court, a circuit court of appeal, and the United States Supreme Court. Nor could they have known that those events would culminate in a legal precedent that helped resolve one of the most significant issues in Chapter 11, 12, and 13 bankruptcies: how to calculate the appropriate “cramdown” interest rate. In Till v. SCS Credit Corp., the United States Supreme Court held in a plurality decision that the so-called “formula approach” is the appropriate method for determining the adequate rate of interest in a Chapter 13 cramdown. The “formula approach” requires that the prime national interest rate serve as a baseline for determining the appropriate cramdown interest rate and that the rate be adjusted, if necessary, based on the risk of nonpayment. Download this article.Posted: Oct. 18, 2004

Concentration Concerns in the American Livestock Sector: Another Look at the Packers and Stockyards Act

Jon LauckAttorney and Professor of History South Dakota State University

In the early years of the twentieth century, the American meatpacking industry was often criticized for engaging in anticompetitive behavior. As one early report of the United States Senate concluded, “[i]t has been demonstrated beyond question that the history of the development of this industry has been the history of one effort after another to set up monopoly.” Such concerns prompted Congress to adopt the Packers and Stockyards Act in 1921. A civil action in which a federal jury found the meatpacking company Tyson-IBP guilty of depressing the price of cattle and highlights the importance of these concerns and the need for a more comprehensive understanding of the P&SA. This article outlines the general changes in the hog and cattle markets that have prompted concerns about competition, discusses concerns regarding the effectiveness of the Packers and Stockyards Administration as an enforcement agency, addresses concerns about the more general antitrust statutes, and sets forth the general history surrounding passage of the P&SA. Download this article.Posted: Oct. 18, 2004

The Constitutionality of Partition Fence Statutes in the Midwest

James L. MolloyAssociate Professor of Business Law University of Wisconsin-WhitewaterLinda A. ReidAssistant Professor of Business Law University of Wisconsin-Whitewater

Partition fence statutes are applicable only in rural areas where, historically, land was used primarily for the purpose of raising livestock or crops. This article surveys the partition fence statutes currently in place in the Midwest where, over time, the use of rural property has evolved from exclusively agricultural to more often residential. This article further explores the current constitutionality of those statutory schemes in light of the changed nature of rural land use since their enactment. Download this article.Posted: Aug. 12, 2004

The War on GMO’s: A Report from the Front

John S. HarbisonStaff Attorney The National AgLaw Center

In April 2004, the Vermont legislature became the first in the nation to require manufacturers of genetically modified seeds to label and register their products. The proponents of this statute narrowly missed passing a companion bill that would have imposed liability for economic losses caused by genetic contamination on seed manufacturers, rather than neighboring farmers who grow genetically modified plants in their fields. In March 2004, the residents of Mendocino County, California, went even further by enacting an outright ban on genetically modified plants. Following Mendocino County’s lead, voters in a dozen other California counties are considering initiatives that would ban genetically modified crops. This article does not explore the pros and cons of GMOs. That debate is already lengthy–and barbed–and it is likely to continue for a while. Rather, this article analyzes the Mendocino County ban and the Vermont labeling and registration statute with respect to their constitutionality. Sponsors of both measures anticipate legal challenges. In fact, the biotechnology industry has hinted strongly that these challenges will arrive soon. And, quite clearly, both measures raise interesting issues under two related constitutional law doctrines: the dormant commerce clause and the concept of federal preemption. Because Mendocino County Measure H and Vermont H. 352 are so different in effect, analysis of their respective constitutionality, or lack of it, especially under the dormant commerce clause, is going to be very different too. Accordingly, Part A of this article provides an introduction to these related constitutional doctrines. Part B briefly sets forth the principal concerns of GMO opponents. Part C explores the application of the dormant commerce clause to the Mendocino County ban and the Vermont labeling and registration statute. Part D explores the application of the doctrine of federal preemption to these same measures. Download this article.Posted: Aug. 6, 2004

Commercial Laws in the United States of America Relating to Bailments

Drew L. KershenEarl Sneed Centennial Professor of Law Univeristy of Oklahoma College of Law

This article provides an introduction to the law of bailment with an emphasis on commercial bailments. While this article has tried to provide the reader with a solid understanding of bailment law, it has not attempted to provide a detailed exposition of every legal issue that has arisen. More significantly, this article has not attempted to provide a discussion of the many cases that have addressed specific bailment law issues. At times the footnotes cite case decisions, but the article focuses on the statutory provisions of state and federal laws relating to bailment. Download this article.Posted: Aug. 4, 2004

Statutory Exhaustion of Administrative Remedies in Actions Against the USDA

Christopher R. KelleyNational AgLaw Center Faculty Advisor Associate Professor, University of Arkansas School of Law

The exhaustion of administrative remedies doctrine requires those who claim that an agency’s action is unlawful to exhaust any administrative remedies as a precondition to judicial relief. The doctrine is a venerable one, having originated in the federal common law as a prudential rule of judicial administration. It seeks to ensure that agencies retain the primary responsibility for administering the programs that Congress has placed within their purview and to promote judicial efficiency. In other words, “[t]he exhaustion doctrine . . . acknowledges the commonsense notion of dispute resolution that an agency ought to have an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court.” This traditional, court-created exhaustion doctrine has exceptions. For example, exhaustion is not required when the administrative remedy is inadequate or pursuing it would be futile. In general, these and the other exceptions reflect the judiciary’s balancing of the affected individual’s need for immediate judicial relief against the institutional needs for agency autonomy and judicial efficiency. Download this article.Posted: June 24, 2004

Attorney’s Fee Awards for Unreasonable Government Conduct: Notes on EAJA

Christopher R. KelleyNational AgLaw Center Faculty Advisor Associate Professor, University of Arkansas School of Law

The “American Rule” of attorney’s fees ordinarily requires each party to pay its own fees in the absence of express statutory authority to the contrary. When one of the parties is the federal government this rule is bolstered by the government’s sovereign immunity. In about 200 statutes Congress has clearly put aside the American Rule and waived the federal government’s sovereign immunity to permit the award of attorney’s fees to prevailing parties other than the federal government. Unlike many of these statutes, the Equal Access to Justice Act (EAJA) is not attached to any particular substantive cause of action. Instead, subject to its exceptions and limitations, the EAJA operates as a broad waiver of the federal government’s sovereign immunity from awards of attorney’s fees in non-tort civil proceedings. Near the end of its 2003-3004 Term, the United States Supreme Court in Scarborough v. Principi again resolved a question of interpretation of the EAJA, one that had divided several circuits. In light of this decision, now may be an opportune time to re-acquaint readers with the most basic features of EAJA. This article intends to do just that. Download this article.Posted: June 24, 2004

The Constitutionality of Corporate Farming Laws In the Eighth Circuit

Harrison M. PittmanStaff Attorney The National AgLaw Center

Several states have enacted statutory or constitutional provisions that limit the power of corporations to engage in farming or agriculture, or to acquire, purchase, or otherwise obtain land that is used or usable for agricultural production. Such legal provisions are commonly referred to as corporate farming laws. Most corporate farming laws are enacted as statutes rather than constitutional amendments. Proponents of corporate farming laws argue that these laws are necessary to protect family farms from the negative economic consequences of competition with corporate-owned or corporate-operated agricultural operations. Opponents of corporate farming laws argue that these laws are unconstitutional and an impediment to a vibrant free trade economy among the states. Download this article.Posted: June 14, 2004

Jack and the Beanstalk: Property Rights in Genetically Modified Plants

Nathan A. BuschAttorney at Law

The conversion of domesticated plant species into transgenic plants and their subsequent utilization in the agricultural production of usable crops has created a tension between the farmer, the seed manufacturer, and the public. The farmer desires to save the progeny transgenic seeds from one planting cycle for use in the next and to be autonomous in his decisions regarding the utilization of his land, his financial resources, and his crop. The seed manufacturer desires to make a profit from the transgenic plant. The public desires that the food and fiber produced by the transgenic plants be safe for consumption. While all of these positions are equally valid, discussions among these three parties usually fall into a quagmire of often emotional and irrational arguments. The theory upon which this article is founded is that each of the parties is merely articulating, sometimes without eloquence, a position derived from the property rights fundamental to each party. Through examination of the property rights of each of the parties, a path to the resolution of the tension will be illuminated. This article aims to examine the farmer’s and seed manufacturers’ property rights in genetically modified plants, leaving the public property rights for the time being. The story of Jack and the Beanstalk1 provides a useful allegory and sets the stage for this discussion. Download this article.Posted: May 27, 2004

Zoning Limitations and Opportunities for Farm Enterprise Diversification:Searching for New Meaning in Old Definitions

Advocates of small farm viability are increasingly proposing market-driven state and local policy initiatives to counter the loss of farms at the urban edge due to rising land and input prices, falling commodity prices, and an overall deterioration of the rural infrastructure that has until recent decades supported the agricultural economy of rural communities. This is largely due to the low political priority in the agricultural sector of regulatory-based programs designed to stem farm loss. At the core of these initiatives is the provision of legal, financial, technical, and moral support and protection to direct farm marketing and other production diversification efforts such as direct niche marketing (e.g. organic produce or grass-fed beef), farmers’ markets, farm stands, and on-farm retail operations and recreational experiences. A common theme of these economic development efforts is the encouragement of local governments to exercise their zoning powers with increasing flexibility and restraint as they review a farm’s – and in aggregate a farm community’s – applications to diversify or otherwise change the nature of its traditional operation to take advantage of the economic opportunities offered by growing urban markets. In the quest for new avenues to farm profitability, however, the ends may not justify the means when facing local zoning authorities. Download this article.Posted: May 7, 2004

A Legal Guide to the National Organic Program – Updated

Congress enacted the Organic Foods Production Act (“OFPA”) of 1990 to create “national standards governing the marketing of certain agricultural products as organically produced products,” assure consumers that “organically produced products meet a consistent standard,” and facilitate “interstate commerce in fresh and processed food that is organically produced.” OFPA requires the USDA Secretary to establish national standards for organic production and handling consistent with OFPA. On December 21, 2000, the USDA published a final rule that created these national standards. The combination of OFPA and the final rule created the National Organic Program (“NOP”). As of October 21, 2002, for a “producer” or “handler” to sell, label, or represent agricultural products as “organic,” that producer or handler must comply with all applicable requirements set forth in the OFPA and the final rule. This article discusses the NOP by examining the OFPA, the NOP final rule, and prefatory comments to that final rule. Download this article.Original version posted Mar. 10, 2004; Updated version posted Mar. 10, 2011

Biodiversity and the Law of Nature Conservation in Great Britain

John S. HarbisonStaff Attorney The National AgLawCenter

The British have a well-deserved reputation for their love of birds and for being avid birdwatchers. Indeed, the Royal Society for the Protection of Birds, with more than one million members, is probably the most influential conservation organization in the country. So it is not surprising that the editors of THE ECONOMIST, the leading weekly newsmagazine in Great Britain, recently lamented drastically declining numbers of British farmland birds. The magazine reported, for example, that corn bunting numbers are down by 41%, grey partridges by 18%, skylarks (established favourite of English poets) by 14%, and yellowhammers by 13% in just the last decade. These declines are attributed to a single change in British farming practices: sowing grain and rapeseed in the autumn and winter rather than the spring. The result is less grain lying in farmers’ fields for birds to eat and consequently fewer birds. What may be surprising is THE ECONOMIST’S suggestion for fixing this problem. The magazine, with a longstanding and global disdain for government subsidies, especially in agriculture, suggests that the only remedy is to pay British farmers “to let more fields and field margins lie fallow” in the fall. That recommendation, in a nutshell, is a main topic of this article. Download this article.Posted Mar. 9, 2004

Biodiversity and Law: The Culture of Agriculture and the Nature of Nature Conservation

John S. HarbisonStaff Attorney The National AgLawCenter

About nine thousand years ago, beneath the Karacadag Mountains of southeastern Turkey, a small group of people, over a short period of time, made the most momentous and consequential revolution in human history. They triggered the evolution of agriculture. Every subsequent step along the road of human civilization is based on that moment. It has been called “the most important advance that mankind has ever made since it developed the powers of speech, conscious thought and firemaking” and “the worst mistake in the history of the human race.” Opinions differ. Agriculture involves the intentional modification of ecosystems so that they produce plants and animals that would not occur naturally in either the same form or quantity. Agriculture has given us the food surpluses that have permitted the florescence of human culture but also the destruction of forests, the exhaustion, erosion and salinization of soils, the eutrophication and poisoning of lakes and streams, and the drainage of wetlands. It has caused the extinction of species and has contributed to their diversity. In our times we are witnesses to the fifth great episode of extinction in the 600-million-year history of life on earth and the first in which humanity is the primary agent. This article-the first in a forthcoming series-is about the strengths and weaknesses of current approaches to the conservation of biodiversity in the developed world-or at least in a significant part of it-from the perspective of law and policy. By contrasting efforts in Great Britain and the United States to deal with biodiversity loss, lessons to be learned from these countries’ quite different approaches will be identified, beginning some premises that do not require extensive elaboration. Download this article.Posted Feb. 12, 2004.

Nuisance Immunity Provided by Iowa’s Right-To-Farm Statute: A Taking Without Just Compensation?

Stephanie L. DzurAttorney at Law

To preserve farmlands, agricultural protection laws, commonly known as right-to-farm, have been enacted in all fifty states. The right-to-farm laws seek to adjust legal rights between competing property interests by protecting agriculture from nuisance claims and isone way in which the important public policy of preserving land for agricultural uses is effectuated. As the United States Supreme Court has recently become more protective of private property rights, the Constitution has emerged as a new weapon to strike at right-to-farm laws. In Bormann v. Board of Supervisors, the Iowa Supreme Court held that an Iowa statute giving immunity from nuisance suits to farming activities in areas designated as agricultural areas violated the Takings Clause of the Iowa and United States Constitutions. This article examines how the Iowa court arrived at its determination. It will discuss how the property right subject to the takings analysis is defined and whether the Bormann court was correct in characterizing the nuisance immunity as a per se taking of property without just compensation. Download this article.Posted: Feb. 12, 2004

Legal Issues in Developing a National Plan for Animal Identification

The recent discovery in the United States of bovine spongiform encephalopathy, commonly referred to as mad cow disease, has accelerated efforts to implement a national identification program for animals. This is no easy task, as funding, logistical, and legal concerns need to be resolved. This article briefly reviews the efforts to develop a national animal identification program and frames the legal issues raised by some producers to such a program. Download this article.Posted: Feb. 4, 2004

The Perishable Agricultural Commodities Act (“PACA”)was enacted in 1934 “for the purpose of regulating the interstate business of shipping and handling perishable agricultural commodities such as fresh fruit and vegetables” and to “provide a practical remedy to small farmers and growers . . . vulnerable to sharp practices of financially irresponsible and unscrupulous brokers in perishable agricultural commodities.” George Steinberg & Son, Inc. v. Butz; Chidsey v. Geurin. PACA is important legislation for individuals and entities involved in the buying and selling of perishable agricultural commodities. Numerous legal issues arise in court actions brought pursuant to PACA. These issues include whether lending institutions are required to disgorge funds they receive from a buyer of perishable agricultural commodities, whether a produce supplier holds a valid claim to the assets of a PACA statutory trust, whether a produce buyer’s or seller’s conduct violates certain PACA requirements, and whether the officers and directors of a corporation that purchased perishable agricultural commodities could be held personally liable for the corporation’s failure to pay the produce seller. Litigation dealing with these issues and others are addressed in this article, which summarizes significant cases brought pursuant to PACA that were issued between January 1, 2002, and June 1, 2003. Download this article.Posted Dec. 10, 2003

Agricultural Zoning, Bankruptcy, and the Rural Homestead

Robert LaurenceRobert A. Leflar Distinguished Professor of Law University of Arkansas School of Law

Suburban sprawl meets farmland preservation: much has been written about this phenomenon, both in the popular press and in the scholarly journals. In this article, I will discuss one very small part of the problem. Suppose that in reaction to fears of suburban sprawl, a county imposes an agricultural zoning regime that, among other things, prohibits the division of land into too-small parcels in order to protect its agricultural use and rural character. Suppose that a married couple, deeply in debt, live in such a county, on a farm of 350 acres subject to a zoning restriction prohibiting the division of the property into lots smaller than eighty acres. And suppose further that the laws of the debtors’ state protect their homestead from creditors, irrespective of value but only up to forty acres. The question is how should a court – state or federal bankruptcy – react to this situation? How much of the 350 acres should be sheltered from creditors? And what about the zoning restriction that would not seem to allow the creation of a forty-acre free-standing homestead for the debtors? Download this article.Posted: Aug. 18, 2003.

An Overview of the Packers and Stockyards Act

Christopher R. KelleyAssociate Professor of Law University of Arkansas School of Law

This article offers an overview of the structure and basic provisions of the Packers and Stockyards Act. It begins with brief accounts of the Act’s history and of the industries the Act regulates. It then describes the manner in which the Act regulates those subject to it–packers, swine contractors, stockyard owners, market agencies, dealers, and live poultry dealers. It concludes with a description of a recently enacted statute that, while not a part of the Packers and Stockyards Act, will apply to some within the sectors that the Act regulates. Download this articlePosted: Aug. 11, 2003

USDA’s National Appeals Division Procedures and Practice

Karen R. KrubFarmers’ Legal Action Group, Inc.

The USDA National Appeals Division (NAD) was created by the Secretary of Agriculture in 1994 pursuant to the Federal Crop Insurance Reform and Department of Agriculture Reorganization Act of 1994. The NAD is the USDA’s administrative appeal authority for resolving disputes arising between program participants and several USDA agencies, including the Farm Service Agency, the Natural Resources Conservation Service, the Risk Management Agency, the Rural Business-Cooperative Service, the Rural Housing Service, and the Rural Development agency. This Research Article provides a step-by-step guide to the NAD appeal process. Download this article.Posted: May 23, 2003

Direct Payments and Counter-Cyclical Payments Under the 2002 Farm Bill: An Overview

Harrison M. PittmanStaff Attorney The National AgLaw Center

The Farm Security and Rural Investment Act of 2002, commonly referred to as the 2002 Farm Bill, was enacted on May 13, 2002. It governs federal domestic commodity programs for the next six years and significantly alters previous legislation pertaining to domestic commodity programs. Under the 2002 Farm Bill, farm income support for wheat, corn, grain sorghum, barley, oats, upland cotton, rice, soybeans, and other oilseeds is provided through three programs: (1) direct payments, (2) counter-cyclical payments, (3) and loan deficiency payments and marketing loan gains. The 2002 Farm Bill significantly modifies the peanut payment program by changing it from a two-tier price support program based on nonrecourse loans to a payment program comprised of direct, counter-cyclical, and marketing loan provisions. This article discusses the direct payment and counter-cyclical payment programs for wheat, corn, grain sorghum, barley, oats, upland cotton, rice, soybeans, other oilseeds, and peanuts. Download this article.Posted: May 6, 2003.

Recreational Use of Private Lands: Associated Legal Issues and Concerns

Recreational activities on private lands have increased in recent years due to the inability of public lands to meet demand. The prospect of monetary gain and the liability protection provided by state law for recreational activities on private land provide other incentives for the increased the use of farm and ranch land for recreational activities. The key questions for those wishing to operate fee-based recreational activities on rural land are potential liability exposure to participants, the extent to which state law provides liability protection, and whether additional steps are necessary to insulate against liability claims. Download this article.Posted: May 5, 2003.

Should Potential Long-Term Health Care Needs Be a Part of Your Farm Estate Plan?

Long-term health care is becoming an important issue for an increasing number of people. Not only are people living longer than at any time in the past, the cost of long-term care continues to rise. Before 1980, the median age of the population in the United States was 30; estimates are that by 2010 the median age will be 37 – the present median age of Floridians. The fastest growing portion of the population is those over age 65 and, of that group, the segment consisting of those over the age of 85 is growing the fastest. As people grow older, they tend to have more health problems, with some people requiring long-term health care. Consequently, one of the most pressing problems facing a significant portion of the elderly is the cost of long-term health care. 1997 data from the American Health Care Association indicates that the average American male can expect to spend $56,895 on long-term care and the average woman $124,370. Download this article.Posted: May 5, 2003.

Proper Handling of Disaster Payments, Crop Insurance and Livestock Sold On Account of Weather

In 2002, adverse weather conditions caused crop and livestock losses in many parts of the country. The western United States was hit particularly hard. This article explores several income tax rules that are designed to soften the blow by allowing preferential treatment of gains and losses realized as a result of weather-related conditions. Download this article.Posted May 5, 2003.

Governmental Oversight of Animal Feeding Operations

Changes in animal production in the United States at animal feeding operations (AFOs) have been accompanied by concerns about those operations’ waste byproducts and production practices. With the marked expansion of concentrated animal feeding operations (CAFOs) and the problems associated with large numbers of animals in confined areas, a number of issues have attracted the attention of the public. This article provides an overview of several production and environmental issues associated with concentrated animal production. It provides information on conditions that have created public dissatisfaction with existing regulatory efforts and then addresses the issue of water contamination, commencing with an analysis of the evidence cited in justification of the new federal water quality regulations. This article also looks at the voluntary efforts employed by producers to control environmental problems and new federal regulations involving mandatory controls for some producers. It then considers the administration and enforcement of CAFO regulations, noting that the enforcement of existing regulations might obviate the need for additional controls. Download this article.Posted Apr. 8, 2003.

The USDA National Appeals Division: An Outline of the Rules of Procedure

Christopher R. KelleyAssociate Professor of Law University of Arkansas School of Law

The USDA National Appeals Division (USDA NAD) was created by the Secretary of Agriculture in 1994 pursuant to the Federal Crop Insurance Reform and Department of Agriculture Reorganization Act of 1994. On December 29, 1995, the USDA NAD Rules of Procedure were published in the Federal Register as interim final rules. These rules remained in interim final form until June 23, 1999, when they were amended and published as final rules. They appear in the Code of Federal Regulations at 7 C.F.R. Part 11. This outline reviews these rules. Download this article.Posted: April 1, 2003.

The Conservation Security Program and the Grassland Reserve Program Under the 2002 Farm Bill

Harrison M. PittmanStaff Attorney The National Agricultural Law Center

The Farm Security and Rural Investment Act of 2002, commonly referred to as the 2002 Farm Bill, created two new conservation programs, the Conservation Security Program (“CSP”) and the Grassland Reserve Program (“GRP”). The GRP and the CSP represent significant additions to the conservation programs available to farmers and ranchers. Because the regulations implementing the GRP and the CSP have not been issued, this summary covers only the statutory provisions for each program. Download this article.Posted: Apr. 1, 2003.

The Perishable Agricultural Commodities Act: The Statutory Trust and Its Application to Restaurants

Harrison M. PittmanStaff Attorney The National AgLaw Center

In 1930, Congress enacted the Perishable Agricultural Commodities Act (“PACA”) “for the purpose of regulating the interstate business of shipping and handling perishable agricultural commodities such as fresh fruit and vegetables.” The primary purpose of the PACA is to “provide a practical remedy to small farmers and growers who [are] vulnerable to sharp practices of financially irresponsible and unscrupulous brokers in perishable agricultural commodities.” In 1984, Congress amended the PACA to include a statutory trust for the benefit of unpaid sellers of perishable agricultural commodities. For nearly seventy years it was widely believed that the PACA did not apply to restaurants and restaurant chains. This article briefly discusses the PACA’s applicability and the types of conduct it prohibits. It also examines the statutory trust provisions, how the statutory trust operates, and to whom the trust generally applies. Finally, this article analyzes and discusses the cases that have held that restaurants can be subject to the PACA and therefore its statutory trust provisions. Download this article.Posted: Jan. 21, 2003.

J.E.M. Ag Supply v. Pioneer Hi-Bred International: Its Meaning and Significance for the Agricultural Community

Michael T. RobertsShareholder Van Cott, Bagley, Cornwall & McCarthy

On December 10, 2001, the United States Supreme Court in J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc. (“J.E.M.“), held that utility patents may be issued for plants under the Utility Patent Act despite distinct protections available under the Plant Variety Protection Act and the Plant Patent Act. J.E.M. was the first United States Supreme Court decision in two decades to rule on the eligibility for patenting under the Utility Patent Act, and the Court’s decision was closely followed by, and has important implications for, the agricultural community. This article addresses the meaning and significance of J.E.M. to the agricultural sector. It outlines the factual, procedural and legal background of the dispute in J.E.M. and explains the rationale and scope of the Supreme Court’s decision. The implications of the decision for the agricultural community, including agricultural biotechnology companies, seed companies, and agricultural producers are addressed. The unique issues for utility patent applications under the Utility Patent Act are also explored. Download this article.Posted: Jan. 21, 2003.

Legal Liability Issues in Agricultural Biotechnology

Drew L. KershenEarl Sneed Centennial Professor of Law University of Oklahoma

Legal liability in tort law should be contrasted with regulatory approval. Regulatory approval focuses on whether a particular transgenic crop, microorganism, or animal is safe to humans and the environment. Regulatory approval deals with whether and under what conditions agricultural biotechnology crops and animals may be produced, marketed, and used. By contrast, before or after regulatory approval, a particular transgenic plant, microorganism or animal could possibly cause damage to property, persons, markets, the environment, or to social structures. Legal liability in tort addresses the kinds of liability that may exist for these possible damages. Those who produce or use agricultural biotechnology products need to know about the legal standards by which they may be held accountable for damages. In addition, those who might potentially be damaged by agricultural biotechnology need to be aware of the kinds of claims that they might assert to establish legal liability against producers and users of this technology. Download this article.Posted: Dec. 5, 2002.

Husband and Wife Farmers in Agricultural Bankruptcies: The “Tools of the Trade” Exemption

Harrison M. PittmanStaff Attorney The National AgLaw Center

This article examines the “tools of the trade” exemption as it applies to agricultural bankruptcies involving husband and wife farmers. The first part provides a general discussion of some of the issues that debtors and creditors must consider when claiming certain property as exempt from “property of the estate.” This includes a brief discussion of what “property of the estate” means under the Bankruptcy Code, as well as the state and federal lien avoidance options available to a debtor. This article also provides a discussion of the “tools of the trade” exemption, including a brief examination of the “tools of the trade” exemptions available under state and federal law. Finally, this article analyzes the “tools of the trade” exemption as it applied in two recent agricultural bankruptcies involving husband and wife farmers: In re Lampe and In re Kieffer. Download this article.Posted: Oct. 9, 2002.

Scope of the Federal Crop Insurance Arbitration Clause

Federal crop insurance is presently sold and serviced exclusively by private insurance companies under reinsurance agreements with the Federal Crop Insurance Corporation (FCIC). FCIC programs are administered by USDA’s Risk Management Agency. Common to every current FCIC reinsured policy is a provision requiring arbitration of disagreements between the private insurer and the policyholder. This article examines the scope of the FCIC’s arbitration clause and its implications for disputes between policyholders and their reinsured private providers. A separate appeals process applies to disputed FCIC determinations. Download this article.Posted: Aug. 27, 2002.

How the Concept of Navigability May Determine the Rights of Landowners Along Streams

J. W. Looney Distinguished Professor of Law, Emeritus University of Arkansas School of Law

This article provides an overview of how the varying definitions, interpretations, and concepts of navigability may be applied in determining the rights of landowners who own land along streams or land through which streams run. The article explores the historical development of the definition of a navigable stream and how the question of navigability can determine a landowner’s rights to the stream bed. In addition, this article discusses the rights that members of the public may have to use a stream for recreational purposes and examines the question of whether a stream must be navigable before the government can implement regulatory controls. Download this article.Posted: Aug. 27, 2002.

An Overview of Organizational and Ownership Options Available to Agricultural Enterprises, Parts I & II

Carol R. GoforthProfessor University of Arkansas School of Law

This two-part article provides an overview of most of the organizational choices available to persons interested in owning and operating an agricultural enterprise. Part I addresses sole proprietorships, general partnerships, limited liability partnerships, limited partnerships, and limited liability partnerships. Part II covers limited liability companies, corporations, and cooperatives. Download Part I of this article.Download Part II of this article.Posted: Aug. 5, 2002.

Farmers’ Markets Rules, Regulations and Opportunities

Neil D. HamiltonProfessor, Drake University Law School Director, Agricultural Law Center

This study examines the structure and operation of farmers’ markets in the United States, giving special attention to the legal and regulatory issues that may shape their operation. By looking at the rules and regulations markets use and by considering issues markets experience, it is possible to identify the most important challenges vendors and managers of markets may face. The goal of this article is to provide a resource that will be valuable for farmers considering a farmers’ market, to vendors now selling at farmers’ markets, to the organizers and managers who run markets, and to those thinking about creating new markets. Download this article.Posted: July 31, 2002.

Susan A. SchneiderAssociate Professor and Director Graduate Program in Agricultural Law University of Arkansas School of Law

It has been said that Revised Article 9 of the Uniform Commercial Code was designed to bring greater certainty to financing transactions, thus reducing the overall cost of credit. This broad goal is to be accomplished by expanding the scope of Article 9 and clarifying the rules governing security interests. One specific example of this expansion is the inclusion of agricultural statutory liens, including agricultural landlord’s liens, within Revised Article 9. Download this article.Posted: July 31, 2002.

FCIC’s Standard Reinsurance Agreement

Scott FancherAttorney Harrison, Arkansas

Crop insurance is becoming increasingly popular with farmers as a risk management tool. The Agricultural Risk Protection Act of 2000 (ARPA) is evidence that it also enjoys broad support in Congress. ARPA significantly expanded the scope of the crop insurance program and made participation more attractive and likely by substantially increasing the share of the premiums paid by the government. It follows that there now exists an increased opportunity for disputes involving federal crop insurance. Crop insurance can be confusing for anyone unfamiliar with its mechanics, owing to the federal governments’ involvement in its promotion and delivery. That involvement imposes obligations on both the government and the private crop insurance providers. Farmers and their attorneys can benefit from a fundamental understanding of the roles and responsibilities of the different stakeholders in our federal crop insurance system. Download this article.Posted: July 24, 2002.

The Enforcement of Money Judgments Across Indian Reservation Boundaries

Robert LaurenceProfessor University of Arkansas School of Law

In the rural areas of the American West, many conflicts arise that must be settled in either tribal or state court. As with judgments everywhere, some are not paid voluntarily, and the judgment creditor must use coercive enforcement to collect the debt. When the judgment is enforceable against property that lies within the jurisdiction that issued the judgment, then that jurisdiction’s body of enforcement law must be used. But when enforcement must be sought in another jurisdiction, complicated problems of cross-boundary comity and respect arise. When one of the jurisdictions is a tribal court and one is a state court, the issues become complex and involve an intricate mix of tribal, state and federal law. The purpose of this article is to introduce those unfamiliar with the field of American Indian law to this mix and to the various and conflicting approaches that courts and commentators have taken to the problem, with special attention given to problems that might affect the farming community. Download this article.Posted: July 24, 2002.

An Introduction to the Federal Securities Laws As They Might Apply to Agricultural Operations

Carol R. GoforthProfessor University of Arkansas School of Law

This article provides an overview of some of the ways in which federal law might impact the sale of “securities” by those in an agricultural enterprise. Because securities law is a relatively specialized area of the law, even general practitioners who are quite capable of providing legal advice and assistance on other matters may wish to have a general reference guide to the kinds of securities issues that might be raised by their agricultural clients. Because this article may be used by both laypersons and lawyers, the material is designed to be understood by anyone; the footnotes contain specific legal citations, explanations, and additional references more appropriate to those with legal training. Download this article.Posted: July 24, 2004.

Dealing with the USDA: Federal Administrative Law Basics

Christopher R. KelleyAssociate Professor of Law University of Arkansas School of Law

“Administrative law is not for sissies.” Antonin Scalia, Judicial Deference to Administrative Interpretations of Law This article offers insight into dealing with the United States Department of Agriculture (USDA) by introducing and explaining some of the most basic principles of federal administrative law. The USDA, like all federal agencies, was created by Congress. Because federal administrative agencies are created by Congress, the “cardinal rule number one of administrative law” is that “the legislature creates agencies and sets limits on their authority.” Thus, a federal agency’s authority is both granted and limited by Congress. Download this article.Posted: July 24, 2002.

Introduction to Federal Farm Program Payment Limitation and Payment Eligibility Law

Christopher R. KelleyAssociate Professor of Law University of Arkansas School of Law

This article provides an overview of the federal farm program payment limitation and payment eligibility rules. These rules are a cornerstone of the federal domestic commodity programs for they apply to most programs, including the most economically significant programs. In conjunction with the eligibility requirements specific to each program, these rules define who is eligible for program payments and set the payment limits. The rules discussed in this article are those in effect as of June 15, 2002. Included are the statutory changes made by the 2002 Farm Bill, the Farm Security and Rural Development Act of 2002. The regulations implementing the changes made by the 2002 Farm Bill, however, are not included because they had not been promulgated as of the date of this article. Download this article.Posted: July 24, 2002.

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